         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 25, 2005

  STATE OF TENNESSEE v. DELORES CHRISTINA ARMSTRONG
                   Direct Appeal from the Circuit Court for Blount County
                          No. C-15035 D. Kelly Thomas, Jr., Judge



                   No. E2004-02957-CCA-R3-CD - Filed December 9, 2005


The appellant, Delores Christina Armstrong, was convicted of child abuse and neglect, and she
received a sentence of four years. The trial court ordered the appellant to serve her sentence in
community corrections. Subsequently, the appellant’s community corrections sentence was revoked,
and the appellant was ordered to serve the balance of her sentence in confinement. On appeal, the
appellant challenges the revocation of her community corrections sentence and the imposition of a
term of confinement. Upon review of the record and the parties’ briefs, we affirm the judgment of
the trial court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID G. HAYES and JOHN
EVERETT WILLIAMS, JJ., joined.

Julie A. Rice, Knoxville, Tennessee (on appeal), and Mack Garner, Maryville, Tennessee (at trial),
for the appellant, Delores Christina Armstrong.

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Ellen Berez, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

                                      I. Factual Background

        On August 11, 2004, the appellant pled guilty to one count of child abuse and neglect of a
victim less than six years old, a Class D felony. The trial court imposed a sentence of four years, to
be served in community corrections. The trial court ordered the appellant, as a condition of her
sentence, to have a psychological evaluation, “follow all recommendations,” and take her medication
as prescribed. Further, the court instructed the appellant to attend “parent effectiveness training.”
Additionally, the appellant signed a behavioral contract listing the conditions of her alternative
sentence.

        Subsequently, on October 4, 2004, Lisa Skiles, the appellant’s community corrections
supervisor, filed a community corrections revocation warrant against the appellant. The warrant
alleged that the appellant had failed to report that she had been arrested on September 29, 2004, in
Knox County for violation of probation. Additionally, the warrant alleged that the appellant had
“packed up and rented her trailer to another defendant” and was planning to move to Canada without
prior approval. Finally, the warrant provided that the appellant had failed to pay her monthly
supervision fees or court costs.

        On October 7, 2004, the revocation warrant was amended to include the following grounds
for a revocation of the appellant’s community corrections sentence:

               1. Being arrested September 29, 2004, in Knox County for Violation
               of Probation of Rule 21 and 22; to wit: Inform officer of arrest in 24
               hours and obey all laws of the land.

               2. Being arrested on September 14, 2004 in Sevier County for Theft
               of Property/Lowe’s; Violation of Rule 21 and 22; to wit: Inform
               officer of arrest in 24 hours and obey all laws of the land.

               3. Being in violation of Rule #18: Make a full and truthful report to
               officer: [the appellant] failed to apprise this office of [three] prior
               arrests and convictions.

        On November 4, 2004, another revocation warrant was filed, alleging that the appellant failed
to report her arrest in Knox County on October 29, 2004, for a violation of probation. Additionally,
the warrant provided that the appellant had failed to pay her supervision fees or court costs.

        Thereafter, on December 13, 2004, a revocation hearing was conducted. Don Bowling, a loss
prevention investigator for Home Depot stores, testified regarding the incident on September 28,
2004. Bowling testified that on September 28, 2004, he noticed the appellant, accompanied by a
male and two children, walking through the aisles of the Home Depot store located on Kingston Pike
in Knoxville. Bowling assumed that the man was the appellant’s husband. One of the children was
walking, and the other child was in a carrier seat in the shopping cart. The appellant placed a “brick
rub” in the shopping cart, and her husband placed a “rebar bender” in the cart. They stopped and
talked in front of a display of DeWalt 18-volt batteries, then they each placed one battery in the
shopping cart. The appellant also placed a package of drill bits in the cart. As the couple
approached the registers, the appellant’s husband took one of the batteries out of the cart and walked
toward the registers. The appellant continued to walk straight ahead, and Bowling followed her.

         The appellant went to the gardening department, removed a pair of scissors from a shelf, cut
the drill bit packaging, and removed the security sensor. She placed the scissors back on the shelf,


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then hid the drill bits beneath the blanket covering the child in the shopping cart. The appellant
wandered to the outside area of the gardening department. Her husband eventually came into the
gardening department and handed the appellant a receipt and an empty, plastic Home Depot bag.
After speaking momentarily, the appellant took the battery from her shopping cart and placed it in
the bag with the receipt. The appellant’s husband left, and the appellant walked around for a while
before exiting the building through the garden department without paying for any of the
merchandise.

        Bowling followed the appellant outside the building, giving her an opportunity to return to
the store to pay for the merchandise. However, Bowling apprehended her when she was seventy-five
to eighty feet from the store, obviously attempting to exit the property. The appellant told Bowling
that she had not stolen anything. Thereafter, a scuffle ensued, and the Knoxville Police Department
was called. When the police attempted to handcuff the appellant, she became violent and told her
daughter to “go get Daddy.” The child soon returned with the appellant’s husband who acted “like
he did not have a clue of what was going on.” After being apprised of the problem, the appellant’s
husband stated that the appellant was on medication. Bowling warned the appellant not to return to
any Home Depot properties, and she was given a “no-trespass warning” in front of several witnesses.
Bowling maintained that the appellant acknowledged that she did not have any money with her while
she was in the store. The total value of the stolen merchandise was $154.92.

        Jack Bissett testified that he is a loss prevention agent for the Lowe’s store in Sevierville.
Bissett explained that in his position as loss prevention agent he dresses in plain clothes and does
not wear a “Lowe’s vest” to designate that he is an employee. On September 14, 2004, at
approximately 4:50 p.m., Bissett was performing a “detailed safety walk” when he noticed the
appellant pushing a shopping cart containing at least two children. He believed that a third child was
walking beside the shopping cart. The appellant selected building material tools and placed them
in the shopping cart, underneath a blanket covering one of the children. Each time the appellant
selected an item, she looked furtively back and forth to see if any Lowe’s employees were in the area.
The appellant’s husband periodically came to speak with the appellant then walked away.

        Bissett watched the appellant for approximately forty to forty-five minutes, observing as she
walked through several aisles. During this time, she concealed two trailer hitches underneath the
blanket. Eventually, he saw her exit through the garden department and walk toward the parking lot
without paying for the merchandise. The appellant’s husband was fifteen to twenty-five feet ahead
of the appellant, walking toward the couple’s vehicle. Bissett approached the appellant and advised
her that she was being detained for shoplifting and would have to return to the store to discuss the
merchandise for which she had not paid. The appellant began taking the merchandise from the
shopping cart, throwing the items underneath the display of plants located in front of the store.

      After Bissett told the appellant that she was being detained for shoplifting, the appellant’s
husband approached. Bissett testified that the appellant’s husband was agitated, and he came close
enough to Bissett to “violat[e] my space.” The appellant’s husband produced a piece of paper
showing that the appellant had recently been released from incarceration and asked Bissett to “show


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leniency.” Bissett escorted the appellant back to the store. Bissett explained that he was never
supposed to be alone with a suspect, particularly a suspect of the opposite gender. Therefore, he had
two witnesses come into the room. Bissett stated that the appellant, in the presence of the witnesses,
signed a statement admitting that she stole the merchandise. He stated that he did not coerce the
appellant into signing the statement nor did he promise that he would not call police if she signed
the statement. He stated that the value of the stolen merchandise was $148.82. Bissett stated that
the appellant also admitted she had previously taken $59.03 worth of merchandise from the store.
She stated that the merchandise was returned to the store in exchange for a merchandise card. Bissett
confiscated the card, but he did not charge her for taking that merchandise. Bissett ultimately
notified police.

       After the appellant was arrested, her husband twice returned to the store, attempting to
resolve the situation. Bissett told the appellant’s husband to leave the premises.

        Lisa Skiles, the appellant’s community corrections officer, testified that she had been the
appellant’s community corrections officer since August 11, 2004. The appellant did not tell Skiles
that she had previous convictions in 2003 for shoplifting and criminal trespass. During the August
11 meeting, the appellant signed a behavioral contract agreeing to pay fifteen dollars in supervision
fees each month. At the time of the revocation hearing, the appellant was seventy-five dollars in
arrears. Skiles stated that she tried to do curfew checks, but the appellant never answered her
telephone. The appellant told Skiles that her husband turned the telephone off to circumvent curfew
checks. Skiles acknowledged that the appellant reported on a regular basis.

        Skiles testified that the address she had for the appellant was 2393 Pennsylvania Avenue;
however, she was told by a security officer that the appellant’s address was 903 Grayson Drive.
Skiles admitted that she did not know which address was correct. Further, Skiles did not know
whether the appellant had completed a requisite psychological examination.

        Skiles testified that due to the situation in the appellant’s household, she and her supervisor
believed that the appellant was in physical and psychological danger. Skiles testified that the
appellant had said that her husband made her steal things they needed for the home and the children.
The appellant stated that her husband told her she would not get into trouble due to her mental
illness. Skiles opined that the appellant’s “mental situation is being taken advantage of,” and she
believed that revoking the appellant’s probation would help to alleviate the danger.1

        Skiles stated that as of two weeks prior to the hearing, the appellant had not complied with
the conditions of her community corrections. She noted that the appellant had failed to attend
appointments at Peninsula and had not attended parenting classes. Skiles said that during her
supervision of the appellant, she became aware of the appellant’s arrest in Knox County for
shoplifting on October 29, 2004. Skiles stated that the appellant was taking the psychotropic


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          W e fail to see how the revocation of the appellant’s community corrections sentence is an appropriate
manner in which to address concerns regarding the appellant’s safety.

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medications Lithium and Effexor.

       Bowling was recalled to the stand to explain that as a result of the September 28 shoplifting
incident, the appellant was given a citation to appear at the processing center on October 29, 2004,
for booking. Despite the appellant’s failure to appear at the processing center, she was booked on
October 29. The case on the September 28 incident had not yet gone to trial at the time of the
revocation hearing.

        The appellant testified that in October 2004, she was ordered to attend counseling at
Peninsula and to attend parenting classes. She stated that she went to Peninsula and was prescribed
new medication on December 8, 2004; however, she conceded that she did not attend parenting
classes. The appellant asserted that the Home Depot theft case had been dismissed because the
warrant or the citation was defective. The Lowe’s theft case was scheduled for trial on January 13,
2005.

       The appellant denied that she intended to steal items from Home Depot, explaining that when
she and her husband were at Home Depot, they placed items in the shopping cart because they
planned to purchase the items. Her husband bought the battery pack and left while the appellant
went to look at flowers. The baby was crying, and the appellant left the store to get a soda for the
children. The shopping cart went down a slope in front of the store, and the appellant ran after it.
When she returned with the shopping cart, Bowling stopped her and grabbed her arm. He identified
himself as store security and instructed her not to return to the store. The appellant maintained that
she had intended to purchase the items in her shopping cart. The appellant admitted that she had
been charged with shoplifting multiple times.

        The appellant also testified regarding the incident at Lowe’s. The appellant stated that when
she was at Lowe’s, she put the trailer hitches on the register on her way out of the store. While she
was outside looking at flowers, Bissett approached her. The appellant stated that Bissett scared her,
so she took a trowel from her shopping cart and placed it on a shelf in the plant display outside the
store. The appellant maintained that she had intended to go back inside the store after she looked
at plants. She acknowledged that she had signed the statement saying she had taken the items.
However, she claimed that Bissett had promised her that if she signed the statement he would not
call police and would allow her to leave. The appellant maintained that she and Bissett were alone
when he made the promise.

       The appellant stated that she and her husband moved to 2393 Pennsylvania Avenue
approximately one month prior to the revocation hearing. She did not recall telling Skiles that her
husband convinced her to steal.

       At the conclusion of the hearing, the court stated:

               I think the State has established the violations. The evidence is that
               not only did [the appellant] commit these two thefts, she’s also here


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               today misrepresenting things to me. She did not take advantage of the
               opportunity that I gave her to try to protect her and her children by
               ordering parenting classes and various appearances before
               Community Corrections, so there’s nothing else – I can’t do anything
               else. I’ve tried everything that I can try. And I don’t believe you.

Accordingly, the court revoked the appellant’s community corrections sentence and ordered the
appellant to serve the balance of her original sentence in confinement. On appeal, the appellant
contests the trial court’s rulings.

                                             II. Analysis

       Generally, community corrections sentences are governed by the Tennessee Community
Corrections Act of 1985. See Tenn. Code Ann. § 40-36-101 (2003). The Act provides:

                      The court shall . . . possess the power to revoke the sentence
               imposed at any time due to the conduct of the defendant or the
               termination or modification of the program to which the defendant
               has been sentenced, and the court may resentence the defendant to
               any appropriate sentencing alternative, including incarceration, for
               any period of time up to the maximum sentence provided for the
               offense committed, less any time actually served in any
               community-based alternative to incarceration.

Tenn. Code Ann. § 40-36-106(a)(3)(B)(4) (2003). A trial court may revoke a community corrections
sentence upon finding by a preponderance of the evidence that an offender violated the conditions
of his suspended sentence. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). The trial court’s
revocation of a community corrections sentence will be upheld absent an abuse of discretion. Id.
An abuse of discretion occurs if the record contains no substantial evidence to support the conclusion
of the trial court that a violation of community corrections has occurred. See State v. Gregory, 946
S.W.2d 829, 832 (Tenn. Crim. App. 1997).

         On appeal, the appellant states that she “does not contest the sufficiency of the evidence
proving she was in violation of one of the terms of her Community Corrections sentence, i.e. failure
to report her arrests for shoplifting in Knox and Sevier counties.” However, she maintains that not
all of the allegations against her were proven at the revocation hearing. Further, the appellant claims
that some of the allegations against her at the revocation hearing were made without giving her prior
notice.

        The record reflects that the appellant was clearly provided notice of the failure to report her
arrests on September 29 and and September 14. Additionally, the warrant provided notice regarding
her failure to pay court costs and supervision fees. The trial court found that the State met its burden
of establishing that the appellant violated the conditions of her probation. From our review of the


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record, we can find no evidence that the trial court abused its discretion in so finding. Further, as
we noted earlier, the appellant admits that she violated the terms of her community corrections
sentence. Accordingly, we conclude that the trial court did not err in revoking the appellant’s
community corrections sentence.

         The appellant next argues that even if there was sufficient evidence to support the revocation
of her community corrections sentence, the trial court abused its discretion in ordering her to serve
the balance of her sentence in confinement. Specifically, the appellant “argues that her special need,
i.e. her mental illness, is still best treated in the community with appropriate precautions for her
safety and protection from the bad influence of her husband.” The trial court has the discretion of
determining the sentence to be imposed upon a revocation of a community corrections sentence,
including ordering the original sentence to be served. Therefore, we conclude that the trial court did
not abuse its discretion in ordering the appellant to serve the balance of her sentence in confinement.

                                          III. Conclusion

       Finding no reversible error, we affirm the judgment of the trial court.


                                                       ___________________________________
                                                       NORMA McGEE OGLE, JUDGE




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