         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs November 28, 2001

                STATE OF TENNESSEE v. JAMES D. NEWLAND

                     Appeal from the Criminal Court for Sullivan County
                          No. S40,914    Phyllis H. Miller, Judge



                                 No. E2001-01055-CCA-R3-CD
                                         May 17, 2002

The defendant, James D. Newland, appeals from the Sullivan County Criminal Court’s revoking his
probation that was ordered for his guilty plea to rape. The defendant contends that the trial court
abused its discretion in revoking his probation and sentencing him to confinement. We affirm the
judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ALAN E. GLENN, JJ., joined.

Nat H. Thomas, Kingsport, Tennessee, for the appellant, James D. Newland.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Barry P. Staubus, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The defendant pled guilty to rape, a Class B felony, and the trial court sentenced him as a
violent offender to eight years. Upon the defendant serving one hundred days in jail, the remainder
of his sentence was to be served on supervised probation. The record reflects that the petitioner
completed his one-hundred-day jail sentence on October 31, 1999. On March 2, 2001, the
defendant’s probation supervisor filed a probation violation warrant alleging that he had violated the
special conditions of his probation by (1) not leaving a public place where the victim was present,
a requirement of his treatment plan with Counseling and Consultation Services; (2) having contact
with the victim; and (3) being around children.

        At the revocation hearing, Linda Burrow of the Sullivan County Department of Probation
and Parole testified that she supervised the defendant’s first six months of probation. She said that
before the defendant’s probation began, she went over the rules of his Probation Supervision Order
with him. She said that one of the rules of the defendant’s probation was that he had to maintain
full-time employment. She said that although the defendant was self-employed, she was able to
verify his employment through job receipts he gave to her. She said that the defendant also worked
for Goodwill but that he was fired from Goodwill for improperly picking up donated merchandise.

        Ms. Burrow testified that in addition to the rules, the defendant’s probation order also had
“special conditions.” She said that she went over these special conditions with the defendant and
that he never told her that he did not understand them. The state introduced the probation order into
evidence. The order required the defendant’s completing a treatment program devised by
Counseling and Consultation Services, not having contact with the victim, and not being around
children. Ms. Burrow said that the defendant was cooperative and came to scheduled meetings.

        On cross-examination, Ms. Burrow testified that the defendant completed four hundred fifty
hours of community service, completed an Alcoholics Anonymous (AA) program, was home when
she conducted curfew checks, and never failed a random drug test. She said that he abided by the
rules of his probation and that she was satisfied with his performance. She said that she never
received a complaint about the defendant being around children.

        The sixteen-year-old victim, who was thirteen years old at the time of the rape, testified that
at 8:00 p.m. on February 18, 2001, she was at a Kingsport Wal-Mart. She said that she was alone
and looking for crayons in the toy department. She said that as she walked along the crayon aisle,
she saw the defendant and made eye contact with him. She said that she was about twenty feet away
from the defendant and that she was certain he saw her. She said that she left the toy department
immediately and went to the back of the store in order to give the defendant time to leave Wal-Mart.
She said the defendant was supposed to leave the store if he saw her there.

         The victim testified that when she got to the back of the store, she telephoned her mother and
told her mother that she would be home late. She said that she waited about ten minutes and
returned to the toy department to get the crayons. She said that when she returned to the crayon
aisle, the defendant was still there and that he was watching her. She said that she went to several
aisles in the toy department and that the defendant followed her from aisle to aisle. She said that he
also stared in her direction, made eye contact with her, and got closer to her. She said that a boy and
a girl were with the defendant and that the children looked to be no older than seven years old. She
said that at one point, the defendant tucked back the little boy’s jacket collar. She said that a man,
who appeared to be about thirty years old, stayed close to the defendant.

        The victim testified that after the defendant had followed her for about five aisles, she went
to the front of the store and telephoned a friend. She said that she asked the friend to pick her up
because she was afraid to drive herself home and did not want to leave the store alone. She said that
she did not call a Wal-Mart security guard because she did not want to confront the defendant. She
said that while she was waiting at the front of the store for her friend, the defendant came out of the
toy department, looked toward the front of the store, and again made eye contact with her. She said
that the friend picked her up and that she called the police when she got home. She said that a police

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officer came to her house and that she told him about seeing the defendant. She said that after the
incident at Wal-Mart, her family started receiving frequent hang-up telephone calls. She said that
her family never determined who was making the calls.

        On cross-examination, the victim testified that before seeing the defendant on February 18,
she had not seen him since June 1999. She said that she had not changed her appearance during that
time. She acknowledged that when she telephoned her mother from Wal-Mart, she did not tell her
mother that she had seen the defendant. However, she stated that she was scared, was not thinking
clearly, and did not want her mother to worry about her. Although the victim had testified on direct
examination that she telephoned her friend from the front of the store, she stated on cross-
examination that she telephoned her friend while she was in the back of the store. She said that the
two children were walking with the defendant and that she did not see a woman with him. She said
the defendant had a mad look on his face but made no threats toward her.

         Dr. Mike Adler of Counseling and Consultation Services, a clinic that treats sexual offenders,
testified that he began working with the defendant in October 2000. He said that after the defendant
served one hundred days in jail, the defendant participated in the clinic’s sex offenders program. He
said that before participating in the program, the defendant signed a form stating that he understood
the program’s guidelines and agreed to abide by them. He said that the guidelines came from the
Tennessee Sex Offenders Special Guidelines, which were part of all sex offenders’ probation
requirements. He said that the guidelines required the defendant to leave immediately any public
place where the victim was present and prohibited the defendant from having contact with the
victim. He said the guidelines also prohibited the defendant from having contact with children and
that the defendant knew to stay away from places where children were likely to be present, such as
toy stores, toy departments within stores, and playgrounds. He said that he reemphasized these
guidelines during the defendant’s group therapy sessions and that the defendant never indicated that
he did not understand them.

       Dr. Adler testified that the defendant told him about seeing the victim in Wal-Mart on
February 18. He said that the defendant’s version of the incident indicated that although the
defendant did not leave the store immediately, the defendant had no further contact with the victim.
He said that during a group therapy session, several group members confronted the defendant about
being in the toy department and the defendant responded that he “really didn’t think about that.”

       On cross-examination, Dr. Adler testified that after the defendant saw the victim, the
guidelines required the defendant to leave the property immediately, not just the toy department.
He said the “no contact with children” guideline meant that the defendant could not go into a toy
department even if he was accompanied by another adult. He said the guideline also meant that the
defendant could not talk in the store with a friend, who was accompanied by children. He said the
defendant understood how to follow the guidelines.

        Robert English, the defendant’s probation officer at the time of the alleged violation, testified
that he went over the special conditions of the defendant’s probation with the defendant and that the

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defendant appeared to understand them. He said that he learned of the defendant’s probation
violation as a result of police investigating the incident. He said that when he questioned the
defendant about the incident, the defendant stated that he might have seen the victim in Wal-Mart.
He said that when he asked the defendant if the defendant had been around any children, the
defendant said that he saw a friend in Wal-Mart and that the friend may have had children with her.
On cross-examination, Mr. English said that before the incident, the defendant had done nothing to
violate probation. He said the defendant was cooperative and attended scheduled meetings.

        Holly Ann Dayo testified that she and the defendant were friends. She said that she had a
sixteen-year-old daughter and a three-year-old son but that her children had never had contact with
the defendant. She said that on February 17, 2001, the defendant had chest pains and went to the
hospital. She said that the next day, she and the defendant watched an auto race together and went
to Wal-Mart about 7:45 p.m. to get a model car. She said the defendant was “a little shaky” and got
a shopping cart. She said that they went to the toy department and that she looked through the model
cars. She said that the defendant stood behind her with the shopping cart and that he was never out
of her sight.

         Ms. Dayo testified that as they left the toy department, the defendant stopped to talk to a lady.
She said that she did not know the lady and that she stood nearby as the defendant and the lady
talked. She said that the lady had two children with her and that the children appeared to be about
seven and nine years old. She said that when the defendant and the lady finished talking, the
defendant walked back to Ms. Dayo and they went to another department in the store. She said that
the defendant bought a tackle box and that they left Wal-Mart. She said that she did not see the
defendant moving down the aisles in the toy department and that he did not tell her that he had seen
the victim. She said the defendant did not act upset or aggravated. On cross-examination, Ms. Dayo
testified that she had two convictions for driving under the influence. She said that the defendant
did not touch the two children and that the children did not follow the defendant. She said that she
did not recall seeing a teenager with red hair in the toy department.

        Rhonda Browder, the defendant’s former co-worker, testified that she saw the defendant in
Wal-Mart on February 18. She said that her fourteen-year-old son and nine-year-old daughter were
with her and that she talked to the defendant for a few moments. She said that the defendant was
with a woman and that the woman waited nearby as she talked with the defendant. She said that the
defendant did not touch her children and that he was polite.

        The defendant testified that he was in Wal-Mart with Holly Dayo on the 18th but that no
children were with him. He said that he talked with Rhonda Browder for a couple of minutes and
that she had her two children with her. Although the defendant stated at first that he had not seen
the victim in Wal-Mart, he then said that he did not “know if it was her or not for sure.” He said that
he later told Dr. Adler that he thought he had seen the victim. He denied following the victim, being
around children, or telephoning the victim’s house. He said that he did not touch a child in Wal-
Mart on the 18th. He said he knew that the special conditions of his probation required him to leave


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a store if he saw the victim. However, he stated that because he was not sure he had seen the victim
in Wal-Mart, he did not think that he had to leave the store.

        On cross-examination, the defendant acknowledged that he had known the victim for years.
He said that if the person he saw in Wal-Mart on the 18th was the victim, then he saw her once in
the toy department and again at the front of the store. He said that he did not tell Dr. Adler or Mr.
English about seeing the victim in the front of the store. He said that he knew he was supposed to
stay away from places where children might be present, including toy departments.

        The trial court credited the victim’s testimony and noted that the defendant told several
different stories about whether he saw the victim. The trial court stated that the victim had no duty
to move away from the defendant and that the defendant should have left the store when he saw her.
The trial court also believed the victim’s testimony about the defendant having two children with
him and touching one of them. The court held that the defendant violated his probation and ordered
that he serve the remainder of his sentence in confinement.

        The defendant contends that the trial court abused its discretion in revoking his probation and
ordering that he serve the remainder of his sentence in incarceration. He contends that the evidence
did not support the trial court’s decision and that, in any event, a less harsh punishment would have
been appropriate. The state claims that the trial court did not abuse its discretion. We agree with
the state.

        A trial court may revoke probation upon finding by a preponderance of the evidence that the
defendant has violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, -311(e). If the trial
court revokes probation, it can “(1) order incarceration; (2) cause execution of the judgment as it was
originally entered; or (3) extend the remaining probationary period for a period not to exceed two
years.” State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The decision to revoke probation is within
the sound discretion of the trial court, and its judgment will be reversed only upon a showing of an
abuse of discretion, reflected in the record by an absence of substantial evidence to support the trial
court’s findings. State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997) (citation omitted).

         In this case, the trial court credited the victim, who testified that the defendant saw her in
Wal-Mart, followed her from aisle to aisle, and got closer to her. She also stated that two children
were walking with the defendant and that he touched one of them. This evidence reflects that the
defendant violated the special conditions of his probation. Given the nature of the offense and the
nature of the violation of the conditions, we do not quarrel with the obvious no-tolerance policy
adopted by the trial court. Nothing preponderates against the trial court’s findings. The judgment
of the trial court is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE

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