         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                              Assigned on Briefs July 24, 2002

                      STATE OF TENNESSEE v. JIMMY BYRD

                    Direct Appeal from the Circuit Court for Rhea County
                         Nos. 15128, 15129   Buddy D. Perry, Judge



                                  No. E2001-01955-CCA-R3-CD
                                         August 9, 2002

The defendant pled guilty to two counts of Class D felony theft over $1,000 and was sentenced to the
community corrections program for an effective period of three years. The trial court subsequently
revoked his community corrections sentence and resentenced the defendant to consecutive sentences
of four years on each count as a Range I standard offender, for an effective eight-year sentence. On
appeal, the defendant contends (1) the proof was insufficient to revoke his community corrections
sentence; and (2) the sentence is excessive. We affirm the judgment of the trial court.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOE G. RILEY, J., delivered the opinion of the court, in which DAVID H. WELLES and JERRY L. SMITH,
JJ., joined.

J. Shannon Garrison, Dayton, Tennessee, for the appellant, Jimmy Byrd.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; James
Michael Taylor, District Attorney General; and James W. Pope, III, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                             OPINION

              I. COMMUNITY CORRECTIONS SENTENCE REVOCATION

A. Underlying Facts

       The defendant pled guilty on January 7, 2000, to theft of 3,000 feet of copper wire valued over
$1,000 and theft of a jacuzzi tub valued over $1,000. The defendant was sentenced to concurrent
three-year terms on community corrections. On September 14, 2000, the trial court issued a
revocation warrant alleging the defendant failed to comply with the terms of his release agreement
by committing arson, breaking house arrest, and not maintaining employment. On April 6, 2001, the
trial court entered an order revoking the defendant’s community corrections and sentenced him to
consecutive four-year terms for an effective eight-year sentence.

B. Hearing Testimony

        Rhea County Deputy Sheriff Dean Cranfield testified at the defendant’s revocation hearing
that he investigated an arson that occurred on September 10, 2000. Deputy Cranfield stated the
defendant issued a written statement where he confessed he and “Stacy” were promised $500 by
Stacy’s mother to burn a trailer. Deputy Cranfield testified the defendant further admitted they
purchased “some stuff [to accomplish the arson];” the defendant drove Stacy to get clothing, a
camouflage bag in which “to put the stuff,” and two “walkie-talkie[s];” the defendant drove Stacy to
the scene and rode around until Stacy contacted him; he picked up Stacy; and he returned to the scene
to see if the property was on fire. Deputy Cranfield said the arson occurred late at night or early in
the morning.

       Rhea County Deputy Sheriff Charlie Jenkins testified he cited the defendant for driving
without a license at 9:02 p.m. on August 18, 2000, when the defendant’s vehicle approached a
highway DUI checkpoint.

         Community Corrections Officer Mona Patton testified the defendant was placed on house
arrest for his initial six months in the system. She said that on or about July 10, 2000, he was released
from house arrest, but he was subject to a 6:00 p.m. curfew. She explained he was in violation of
curfew when he received the traffic citation at 9:02 p.m. on August 18, 2000, and when he was
involved in the arson on September 10th. Patton further testified the defendant failed to maintain full
employment as required by the agreement and only “had employment from time to time.” She
explained he quit his last job approximately three days prior to his arrest for arson.

       Kathy Wright, branch manager of Hobbs Temporary Services, testified the defendant was
employed by Hobbs. She testified, over defense objection, that employment records established the
defendant abandoned his job on September 8th.

C. Standard of Review

        Revocation of a community corrections sentence is subject to an abuse of discretion standard
of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. Crim. App.
1996). Discretion is abused only if the record contains no substantial evidence to support the
conclusion of the trial court that violation of a community corrections sentence has occurred. Id.;
State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need not be
established beyond a reasonable doubt, and the evidence need only show that the trial judge exercised
a conscientious and intelligent judgment, rather than acting arbitrarily. Gregory, 946 S.W.2d at 832;
State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

D. Analysis

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        The defendant’s community corrections order provided that he “shall abide by a curfew.”
Deputy Cranfield testified the defendant confessed to participating in an arson that occurred in the
late evening or early morning hours on September 10th. Deputy Jenkins issued the defendant a traffic
citation on August 18, 2000, at 9:02 p.m. Community Corrections Officer Patton testified the
defendant was aware of his 6:00 p.m. curfew, and both instances were curfew violations.

       The defendant contends the trial court improperly admitted Wright’s testimony concerning
the defendant’s lack of employment because she failed to comply with the requirements of the
business records hearsay exception. See Tenn. R. Evid. 803(6). We note, however, “the right to
confront and cross-examine adverse witnesses is not absolute and may be relaxed under certain
circumstances [in a revocation hearing].” State v. Wade, 863 S.W.2d 406, 407 (Tenn. 1993).
However, we need not determine this issue for purposes of this appeal. Regardless of the defendant’s
employment status, the defendant’s curfew violations and his confession to participation in the arson
provided the trial court ample reasons to revoke his community corrections sentence. This issue is
without merit.


                                        II. SENTENCING

A. Standard of Review

         A defendant who challenges his sentence has the burden of proving the sentence imposed by
the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission Comments; State
v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). It is this court’s duty to conduct a de novo review of
the record with a presumption the trial court’s determinations are correct when a defendant appeals
the length, range, or manner of service of his sentence. Tenn. Code Ann. § 40-35-401(d). The
presumption of correctness is conditioned upon the affirmative showing in the record that the trial
court considered the sentencing principles and all relevant facts and circumstances. State v. Pettus,
986 S.W.2d 540, 543-44 (Tenn. 1999).

       A court may order sentences to run consecutively if the court finds by a preponderance of the
evidence that:

       (1) [t]he defendant is a professional criminal who has knowingly devoted such
       defendant’s life to criminal acts as a major source of livelihood;

       (2) [t]he defendant is an offender whose record of criminal activity is extensive; [or]

       ....


       (6) [t]he defendant is sentenced for an offense committed while on probation. . . .


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Tenn. Code Ann. § 40-35-115(b); see also State v. Imfeld, 70 S.W.3d 698, 708 (Tenn. 2002).

B. Analysis

        After considering the sentencing enhancement and mitigating factors, the trial court applied
enhancement factors one (previous history of criminal convictions or criminal behavior) and eight
(previous history of unwillingness to comply with the conditions of a sentence involving release in
the community). Tenn. Code Ann. § 40-35-114(1), (8). The trial court found no sentencing
mitigating factors. See Tenn. Code Ann. § 40-35-113. The proper range of punishment was two to
four years. See Tenn. Code Ann. § 40-35-112(a)(4). The trial court sentenced the defendant to the
maximum four-year term on each conviction.

        The defendant had been convicted of one prior felony and eight prior misdemeanors, and he
confessed to participation in an arson. The defendant committed some prior offenses while on
probation or bond for other offenses. We conclude the trial court correctly applied enhancement
factors one and eight and properly sentenced the defendant to the maximum four-year term for each
conviction.

       The trial court applied consecutive sentencing factors one (defendant is a professional criminal
who has knowingly devoted such defendant’s life to criminal acts as a major source of livelihood),
two (defendant’s record of criminal activity is extensive), and six (defendant is sentenced for an
offense committed while on probation). See Tenn. Code Ann. § 40-35-115(b)(1), (2), (6).

        The presentence report clearly established the 26-year-old defendant had an extensive record
of criminal activity. Thus, this factor was properly applied. It appears the trial court applied
consecutive sentencing factor six (defendant is sentenced for an offense committed while on
probation) after erroneously concluding it was sentencing the defendant for crimes he committed
while on community corrections. Even if that were the case, this factor does not apply to the
commission of a crime while on community corrections. See Pettus, 986 S.W.2d at 543. However,
the presentence report reveals the defendant was convicted of simple assault on December 21, 1998,
and received a six-month suspended sentence. The instant offenses occurred on February 1, 1999,
in violation of his six-month misdemeanor probation. When a defendant is sentenced for an offense
committed while on probation from a misdemeanor conviction, this factor is applicable. See State
v. Jack Layne Benson, C.C.A. No. 01C01-9707-CC-00283, 1998 Tenn. Crim. App. LEXIS 886, at
*10 (Tenn. Crim. App. Aug. 25, 1998), perm. to app. denied (Tenn. 1999) (citations omitted). The
record supports the application of this factor.

       Regarding consecutive sentencing factor one (professional criminal), the evidence is less clear.
However, regardless of whether this factor was properly applied, we conclude the record clearly
demonstrates that the defendant had an extensive record of criminal activity and was sentenced for
offenses committed while on probation. See Tenn. Code Ann. § 40-35-115(b)(2), (6). Either of these



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factors supports the trial court’s imposition of consecutive sentences. See State v. Kilpatrick, 52
S.W.3d 81, 90 (Tenn. Crim. App. 2000).

       We affirm the judgment of the trial court.




                                                      ___________________________________
                                                      JOE G. RILEY, JUDGE




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