            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                 AT NASHVILLE             FILED
                             FEBRUARY 1998 SESSION
                                                            June 30, 1998

                                                       Cecil W. Crowson
STATE OF TENNESSEE,                  )    NO. 01C01-9703-CR-00077 Clerk
                                                      Appellate Court
                                     )
      Appellee                       )    DAVIDSON COUNTY
                                     )
V.                                   )    HON. ANN LACY JOHNS,
                                     )    JUDGE
DOMINIC JUDE AMARI,                  )
                                     )    (Probation Revocation)
      Appellant.                     )
                                     )



FOR THE APPELLANT:                        FOR THE APPELLEE:

Clark Lee Shaw                            John Knox Walkup
2525 Lebanon Road                         Attorney General and Reporter
Nashville, Tennessee 37214
(at trial and on appeal)                  Ellen H. Pollack
                                          Assistant Attorney General
Lionel R. Barrett, Jr.                    450 James Robertson Parkway
Washington Square Two                     Nashville, Tennessee 37243-0493
Suite 417
Nashville, Tennessee 37201                Victor S. Johnson, III
(at trial)                                District Attorney General

                                          Roger Moore
                                          Assistant District Attorney
                                          Washington Square Building
                                          Suite 500
                                          Nashville, Tennessee 37201




OPINION FILED:_____________________

AFFIRMED

WILLIAM M. BARKER, JUDGE
                                        OPINION

        The appellant, Dominic Jude Amari, appeals from the judgment of the trial court

revoking his probation and sentencing him to one (1) year and six (6) months in the

Metro-Davidson County Detention Center, with the appellant being required to serve

thirty days of that sentence at 100%, day for day. The appellant raises two issues for

our consideration on appeal. First, he contends that the evidence introduced at the

probation revocation hearing was insufficient to support the trial court’s decision to

revoke his probation. Second, he contends that the trial court erred in failing to recuse

herself from the revocation proceeding.

        Following our review of the record, we conclude that there is no reversible error

and, accordingly, affirm the judgment of the trial court.

        This case had its beginnings in a protracted and bitterly contested divorce and

custody proceeding in the Circuit Court of Davidson County. The appellant’s former

wife was awarded custody of the parties’ minor son. The appellant, in defiance of the

custody order, took his minor son and fled from the State of Tennessee, using false

identification papers. He was ultimately arrested and custody of the minor child was

returned to the appellant’s former wife. Following his arrest, the appellant was

indicted in the Davidson County Criminal Court for the violation of Tennessee Code

Annotated section 39-2-303, which was the child kidnapping statute in effect at that

time.

        Subsequently, the appellant entered a plea of guilty to the offense as charged,

and was sentenced to immediate probation pursuant to the provisions of Tennessee

Code Annotated section 40-35-313, sometimes referred to as the “judicial diversion”

statute.

        As a part of his judicial diversion, the appellant was placed upon a term of

probation for thirteen (13) years when appellant’s child would attain the age of




                                            2
eighteen (18) years. In addition, the appellant was required to “abide by all orders of

any court with domestic jurisdiction.”

       Subsequently, in July 1996, the appellant, in the presence of his minor son,

gave a television interview to a local television station in Nashville. The interview

apparently focused on the appellant’s belief that fathers generally do not receive fair

treatment from the courts with respect to custody issues.

       One of the provisions of the appellant’s divorce decree was that he was

enjoined from discussing “matters pertaining to the [appellant’s] divorce [from his wife]

and legal matters . . . in the presence of [the couple’s] son.” Accordingly, after

appellant gave the television interview, he was ordered to appear in the circuit court to

show cause why he should not be adjudged in contempt for violating that portion of

the court’s order. Following the show cause hearing, the circuit court, which had

domestic jurisdiction over the appellant, found him to be in criminal contempt of its

order and sentenced him to a ten (10) day suspended sentence.

       Thereafter, on July 17, 1996, a probation revocation warrant was issued

alleging that the appellant had violated a condition of his probation by having been

found in contempt of the circuit court’s order.

       On September 11, 1996, a revocation hearing was conducted. During the

course of that hearing, the trial court received evidence regarding the interview that

appellant had given to the television station which prompted the contempt hearing in

the circuit court. The trial court was also concerned about whether the appellant had

also violated other conditions of his probation by: (1) living outside of Davidson

County without the trial court’s permission; (2) traveling out of the State of Tennessee

without the trial court’s permission; and (3) maintaining self-employment. The trial

judge, therefore, continued the matter until September 25, 1996, in order to cause a

second probation revocation warrant to issue and be served upon the appellant giving

him notice of the additional allegations. However, no additional probation violation



                                            3
warrant appears in the record on appeal, and none was served upon the appellant.

Counsel for the appellant, nevertheless, announced that he was ready to proceed with

both probation revocation warrants when the September 25, 1996, hearing

commenced.

        At the conclusion of the evidentiary hearing on September 25, 1996, the trial

court found that the appellant had violated the terms and conditions of his probation

by: (1) violating the order of the circuit court respecting his domestic case; (2) living in

Williamson County without having obtained permission of the trial court; (3) traveling

out of the State of Tennessee without first obtaining the permission of the trial court;

and (4) being self-employed. Accordingly, the trial court revoked appellant’s judicial

diversion, fixed his sentence at eighteen (18) months, and ordered that he serve thirty

(30) days of that eighteen-month sentence at 100%, day for day, in the Metro-

Davidson County Detention Center.

        On appeal, the appellant first contends that the evidence is insufficient to

support the trial court’s decision to revoke his probation. With respect to appellant’s

residence in Williamson County, his business travel, and his employment, we agree

that the record fails to support the trial court’s conclusion that appellant violated the

terms of his probation.

        We have reviewed the record on appeal and find nothing in the order of

probation which would have required the appellant to first obtain permission of the trial

court to live in Williamson County, rather than Davidson County, to travel out-of-state

on business, and to be self-employed. The evidence indicates that since 1992, the

appellant has lived at Asbury Court, just across the Davidson County line in

Williamson County, he has traveled out-of-state on business trips as an engineering

consultant, and he has been both self-employed and employed through various

consulting businesses.1 Appellant notified his probation officer about his address and


        1
        The appellant began his probation in 1991 while living in Colorado. In February 1992, he
mov ed bac k to Te nness ee and took up residenc e at Asb ury Cour t in W illiamson Coun ty.

                                                  4
his means of employment, and he received permission for each trip that he took in the

course of his business. The record reflects that the appellant complied with the

conditions of his probation in those respects.

       Nevertheless, the trial court correctly found that the appellant violated his

probation when he was adjudged to be in contempt of the circuit court’s order. The

terms of appellant’s probation required him to observe any special conditions imposed

by the Davidson County Criminal Court, including compliance with all orders of any

court with domestic jurisdiction over him. The circuit court found him in criminal

contempt for giving the television interview in the presence of his minor son. By failing

to abide by the circuit court’s order, the appellant was in violation of his probation.

       A trial court is empowered to revoke a defendant’s probation whenever the

court finds by a preponderance of the evidence that the defendant has violated the

conditions of his probation. Tenn. Code Ann. § 40-35-311(d) (Supp. 1990). The

revocation of a probationary sentence is committed to the sound discretion of the trial

judge and will not be overturned on appeal unless it appears that there was an abuse

of discretion. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v.

Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981), perm. app. denied (Tenn.

1981). To sustain the revocation, the evidence need not show a violation of the terms

of probation beyond a reasonable doubt; it is sufficient if the proof allows the trial

judge to make a conscientious and intelligent judgment. See State v. Milton, 673

S.W.2d 555, 557 (Tenn. Crim. App. 1984).

       In this case, the evidence of appellant’s contempt order was sufficient to

support the trial court’s decision to revoke his probation. Therefore, although we

conclude that the trial court erred in finding probation violations concerning appellant’s

residence, his travel, and his self-employment, we hold that the probation revocation

was proper.




                                             5
         The appellant next contends that the trial judge committed fundamental error

when she failed to recuse herself from the probation revocation proceeding. He

argues that the judge was biased against him due to an ex parte communication with

one Marilyn Anderton.

         This issue is without merit.

         On the evening before appellant’s probation revocation hearing, the trial judge

was approached at her home by Marilyn Anderton concerning appellant’s case.

Unknown to the judge at that time, Ms. Anderton knew the appellant and was formerly

married to appellant’s ex-wife’s present husband. Ms. Anderton attempted to give the

judge a letter and discuss the appellant’s case. The judge refused to have any

conversation about the substance of appellant’s case and Ms. Anderton was asked to

leave.

         The appellant testified at the revocation hearing that he knew Ms. Anderton, but

had no knowledge about her attempt to discuss the case with the trial judge. The

judge addressed the matter on the record and indicated that she was unhappy about

the encounter. However, there was no showing that she was biased or prejudiced by

the incident and neither the appellant nor the State requested a recusal.

         The appellant relies on the ex parte communication with Ms. Anderton and

comments made by the trial judge at the revocation hearing to contend that a recusal

was necessary.2 The appellant raises this issue for the first time in this appeal. He

made no objection in the earlier proceeding, but instead allowed the trial judge to

preside over the revocation hearing without any challenge that the judge was biased

and unable to preside impartially over the case. Appellant’s failure to request a

recusal at the revocation hearing constitutes waiver. See Woodson v. State, 608

S.W.2d 591, 593 (Tenn. Crim. App. 1980), perm. app. denied (Tenn. 1980); State v.

         2
           In his brief, the appellant points to eight statements made by the trial judge during the
revocation hearing which he contends show bias and prejudice. We have thoroughly reviewed those
statements and note that five of the eight statements were made after the close of the evidence when
the trial judge was issuing her findings and conclusions of fact. The statements, when read in the
contex t of the entire record, fa il to show bia s or preju dice so a s to requ ire a recu sal.

                                                   6
Jackie H. Martin, No. 02C01-9512-CR-00374 (Tenn. Crim. App. at Jackson, Dec. 2,

1996).

         Nevertheless, even when addressed on the merits, the record fails to show bias

or prejudice that would have required the trial judge to recuse herself. A recusal is

proper whenever the trial judge has any doubt concerning her ability to preside

impartially in a criminal case or whenever her impartiality can reasonably be

questioned. See State v. Hines, 919 S.W.2d 573, 578 (Tenn. 1995). The decision of

whether to grant a recusal is left to the sound discretion of the trial judge and will not

be overturned on appeal absent an abuse of that discretion. See State v. Smith, 906

S.W.2d 6, 11 (Tenn. Crim. App. 1995).

         In appellant’s case, we cannot conclude that the trial judge harbored a bias or

prejudice sufficient to mandate a recusal. The trial judge acknowledged on the record

that she had been approached by Ms. Anderton in connection with appellant’s case.

However, the judge stated that she prevented any discussions or exchanges of

information related to the substance of the case. The record fails to show any

resulting bias and we are confident that the trial judge rendered a proper and impartial

judgment.

         Based upon the foregoing, the judgment of the trial court is affirmed.




                                                  WILLIAM M. BARKER, JUDGE



CONCUR:



GARY R. WADE, Presiding Judge



J. CURWOOD WITT, JR., JUDGE




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