        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs January 29, 2013

             STATE OF TENNESSEE v. ROY L. MCALISTER

                Appeal from the Circuit Court of Robertson County
               No. 74CC3-2011-CR-310 John H. Gasaway III, Judge


              No. M2012-01239-CCA-R3-CD - Filed February 11, 2013


Roy L. McAlister (“the Defendant”) pleaded guilty to three counts of aggravated statutory
rape and one count of sexual exploitation of a minor. Pursuant to the plea agreement, the
Defendant was sentenced as a Range I, standard offender to an effective sentence of three
years, to be suspended to supervised probation after service of 219 days in confinement.
Upon the filing of a probation violation warrant, the Defendant was taken into custody, and
a probation violation hearing was held. At the conclusion of the hearing, the trial court
revoked the Defendant’s probation and ordered him to serve the remainder of his sentence
in confinement. The Defendant appealed the trial court’s ruling. Based upon the record
before us, we are compelled to vacate the judgment of the trial court and remand this action
to the Robertson County Circuit Court for further findings consistent with this opinion.

                   Tenn. R. App. P. 3 Appeal as of Right; Judgment
                     of the Circuit Court Vacated and Remanded

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Garth Click (on appeal), and Anne Kroeger (at hearing), Assistant Public Defender,
Springfield, Tennessee, for the appellant, Roy L. McAlister.

Robert E. Cooper, Jr., Attorney General & Reporter; Brent C. Cherry, Senior Counsel; John
W. Carney, District Attorney General; and Jason White, Assistant District Attorney General,
for the appellee, State of Tennessee.
                                         OPINION

                          Factual and Procedural Background

        On September 16, 2011, the Defendant pleaded guilty to three counts of aggravated
statutory rape and one count of sexual exploitation of a minor. In accordance with the terms
of the plea agreement, the trial court sentenced the Defendant as a Range I, standard offender
to three years on each aggravated statutory rape conviction and to two years on the sexual
exploitation conviction, to be served concurrently, for an effective sentence of three years.
The trial court ordered the Defendant’s sentence to be suspended to supervised probation
after service of 219 days in the Robertson County Detention Center.

       In January 2012, a probation violation warrant was filed. The trial court conducted
a hearing on March 23, 2012. At the end of the hearing, the trial court revoked the
Defendant’s probation, sentenced him “to time served[,] and reinstated [probation] on the
original terms.” Shortly thereafter, on March 30, 2012, a second probation violation warrant
was filed, which is the subject of this appeal, alleging the following violations:

       Rule 1: I will obey the laws of the Unites States, or any State in which I may
       be, as well as any municipal ordinances.

       Violation: [Tennessee Code Annotated section] 40-39-211(a), offender
       established a residence within 1000 feet of Madison Academy.

       Rule 5: I will inform my Probation Officer before changing my residence or
       employment. I will get permission from my Probation Officer before leaving
       my county of residence or the state.

       Violation: On or about March 27, 2012, this offender moved from Robertson
       County to Davidson County without permission.

      The trial court held a hearing on these alleged violations on May 4, 2012. Sebrina
Seaborne, a probation officer with the Board of Probation and Parole, testified that her job
responsibilities included monitoring enhanced offenders and sexual offenders. She
supervised the Defendant while he was released on probation in this case.

       Seaborne testified that she also was involved in the Defendant’s first probation
violation hearing. She agreed that the first violation arose out of the Defendant’s residing
at an apartment on Cheyenne Boulevard in Davidson County, where the Defendant’s wife
lived. Seaborne testified that she previously visited that apartment and determined that it was


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located within 1,000 feet of property owned by a school, Madison Academy. Seaborne
testified that residing at that apartment is against the sex offender rules and conditions that
apply to the Defendant. Seaborne also testified that, in the rules and conditions that the
Defendant signed, he was required to get her permission before moving from Robertson
County to another county.1

        Seaborne testified that the Defendant was released from jail on March 23, 2012, after
his first violation of probation hearing. The Defendant met with Seaborne on March 27,
2012, to discuss where the Defendant was living and to initiate a GPS tracking device. On
March 27th, the Defendant told Seaborne that he was “back at his home; in the apartments
on Cheyenne Boulevard.” Seaborne told the Defendant that living there was a violation of
his probation and that he already had been violated for living there. According to her, the
Defendant responded that “the Judge didn’t tell me I couldn’t go back there, and I don’t
know why it’s any of your concern where I live.” Seaborne responded, “[I]t is my concern;
the Judge did find you guilty of violating for living there[.]” Seaborne then asked the
Defendant to sign an agreement that he knew he could not use the Cheyenne Boulevard
address as his primary or secondary address. The Defendant did sign this agreement, and it
was entered as an exhibit at the hearing. She again reiterated to the Defendant that he did not
have permission to live at the apartment on Cheyenne Boulevard, and she further instructed
him not to return there.

        At the meeting on March 27th, Seaborne also placed a GPS tracking device on the
Defendant. When the Defendant left this meeting, Seaborne believed that the Defendant was
going to go back to the Cheyenne Boulevard residence. She stated, “His argument was that
I really couldn’t tell him he couldn’t live there. So no matter how many times I had insisted
I could tell him where to live, my understanding when he left was he was . . . just going to
ignore my instruction.”

       Seaborne testified that the following three days, March 28- 30, 2012, she checked the
GPS system to determine the Defendant’s whereabouts. On each of these days, the “tracking
maps” generated by the GPS system, which were entered as exhibits, showed that the
Defendant was at the apartment complex on Cheyenne Boulevard. According to the tracking
map for March 28th, the Defendant was at the apartment complex on Cheyenne Boulevard
from 09:03:35 until 13:02:26 (9:03 a.m. until 1:02 p.m.). The tracking map for March 29th
indicated that the Defendant was at the apartment complex on Cheyenne Boulevard from
09:03:50 until 13:02:22 (9:03 a.m. until 1:02 p.m.). The tracking map for March 30th
indicated that the Defendant was at the apartment complex on Cheyenne Boulevard from


       1
         The transcript does not indicate that the terms and conditions of the Defendant’s probation were
made an exhibit at his second hearing, and they are not included in the record on appeal.

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11:40:40 until 15:39:24 (11:40 a.m. until 3:39 p.m.). On March 30th, Seaborne filed a
second probation violation warrant.

         On cross-examination, Seaborne agreed that the document the Defendant signed
prohibiting him from establishing a primary or secondary residence at the apartment on
Cheyenne Boulevard did not prohibit him from visiting that apartment. Seaborne stated that
she would define “a visit” as “less than 24 hours.” She agreed that she was basing her
position that he was establishing a residence at the apartment on Cheyenne Boulevard on “the
duration of time [the Defendant] was there and the number of days he was there.” Seaborne
then added that “on the TBI instructions it says that he cannot maintain a presence there.
Which doesn’t give you – it doesn’t give you a time frame, but it says that he cannot maintain
a presence.” She stated that “maintain[ing] any kind of presence within a thousand feet[] –
is – illegal” and that “it is a violation.” According to her, she also explained this fact to the
Defendant.2 However, the “TBI instructions” were not referenced in the probation violation
warrant.

        The Defendant testified that on March 23, 2012, at approximately 1:30 a.m., when he
was released from jail after his first probation violation hearing, he went to the apartment on
Cheyenne Boulevard with his wife. He added, “[W]e knew that I couldn’t live there, but
there was nothing saying that I couldn’t go back over there.” The Defendant also stated, “I
talked to the Madison Police Department down there, . . . and told them I would be in their
area[.]” He asked the officers when he could “go check in with [his] wife and [his]
stepdaughter and it’s like they told [him] as long as there was no school in progress, after
hours, they didn’t have a problem with [him] being over there.” Thus, the Defendant
testified, “I would stay gone up until 5:30 when the last bus . . . for Madison ran from
downtown Nashville. And I’d go over there, and I’d stay, and then I would leave at 5:00 in
the morning before school hours opened.”

      The Defendant further testified that he informed Seaborne about this schedule. He
claimed,

        [S]he told me I couldn’t even go over there, that I was in violation at that
        point; and I told her I know I can’t live there; she said you can’t even be over
        there. And I was like nobody told me I couldn’t go over there[.] [T]hey just
        said I couldn’t live there. And she said no, you were well instructed that you
        can’t be there. I was like – well, we had the little disagreement there. And I


        2
         The “TBI instructions” were not admitted as an exhibit during the probation violation hearing and,
accordingly, are not in the record on appeal.


                                                   -4-
       told her, I was like I’m going to go over there and see my wife; I don’t see why
       I can’t do that; I understand I can’t live there.

               So she put the ankle monitor on and told me if I went back on the
       property then I would be immediately in violation; that she [sic] was already
       in violation for being over there to start with. And I informed her well, if I’m
       in violation then I’m going to spend as much time as I can with what I’ve got,
       because I’ve done lost everything in this world over this charge. And she said
       well, you do what you’re going to do, because I – and I understand her
       situation, but that’s the reason why I went back over there.

        Defense counsel then asked, “[T]hat would explain March 29th and March 30th as
well; is that right?” The Defendant responded,

             Yes. Because I figured I was already in violation. And if you look on
       that GPS I didn’t move from that address; I didn’t go w[a]ndering around.
       And she wants you to be in by 9:00 at night. I was already listed as homeless,
       where could I – I mean, you got to be in; where am I supposed to be in at?

        On cross-examination by the State, the Defendant admitted that on March 27, 2012,
Seaborne told him that he “[c]ouldn’t even step foot on the premises.” He also agreed that
he signed a paper stating he could not establish a primary or secondary residence there. He
further agreed that he went and “stayed . . . that night the 28th, 29th, 30th and so forth until
[his] warrant was served.”3 The State then asked, “[A]nd [you] stayed there the entire time
. . . opposite of what you signed and what her instruction was, correct?” The Defendant
responded, “Yes.”

       At the conclusion of the hearing, the trial court found by a preponderance of the
evidence that the Defendant had violated the terms and conditions of his probation “by
maintaining a presence at the Cheyenne Boulevard residence in Davison County” (emphasis
added) and that “[h]is presence there was something that he did in the face of a direct
instruction not to do so.” The trial court also stated, “Given his insistence that he’s not going
to do what he’s required to do on a release status there’s no reasonable expectation that he
will obey any future instructions.” Accordingly, the trial court revoked the Defendant’s
probation and ordered that he serve the remainder of his three-year sentence in the Tennessee
Department of Correction.




       3
           According to the warrant, it was served on April 12, 2012.

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        Thereafter, the trial court issued a written order reflecting its findings. In the written
order, the trial court listed the following grounds as its basis for revoking the Defendant’s
probation:

       [T]he court found beyond a preponderance of the evidence that the
       [D]efendant violated the terms and conditions of his probation due to
       establishing a presence at a residence within 1,000.00 [sic] feet of a school’s
       property after being directly told not to by his probation officer. [emphasis
       added].

       This appeal followed.

                                            Analysis

       The Defendant asserts that the trial court erred in revoking his probation and that it
erred in ordering him to serve the remainder of his three-year sentence in confinement.

        Tennessee Code Annotated section 40-35-311 provides that, upon a probation
revocation proceeding, the court “may enter judgment upon the question of the charges as
the trial judge may deem right and proper under the evidence adduced before the trial judge.”
Tenn. Code Ann. § 40-35-311(d) (Supp. 2011). And,

              [i]f the trial judge finds that the defendant has violated the conditions
       of probation and suspension by a preponderance of the evidence, the trial judge
       shall have the right by order duly entered upon the minutes of the court to
       revoke the probation and suspension of sentence, and:

               (A) Cause the defendant to commence the execution of the judgment
       as originally entered, or otherwise, in accordance with [section] 40-35-310; or

              (B) Resentence the defendant for the remainder of the unexpired term
       to any community-based alternative to incarceration authorized by chapter 36
       of this title; provided, that the violation of probation and suspension is a
       technical one and does not involve the commission of a new offense.

Id. § 40-35-311(e)(1). Thus, the State must prove that the defendant violated the terms of
his or her probation only by a preponderance of the evidence. Id. Once the State has met its
burden of proof, the subsequent decision regarding revocation lies within the sound
discretion of the trial judge. See, e.g., State v. Walker, 307 S.W.3d 260, 263 (Tenn. Crim.
App. 2009); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

                                               -6-
        Therefore, on appeal, we will not disturb the trial court’s decision to revoke probation
absent an abuse of discretion. State v. Farrar, 355 S.W.3d 582, 585 (Tenn. Crim. App. 2011);
see also State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). Generally, “[a] trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its ruling on a clearly erroneous assessment of the proof, or applies reasoning that causes an
injustice to the complaining party.” Farrar, 355 S.W.3d at 586 (quoting State v. Phelps, 329
S.W.3d 436, 443 (Tenn. 2010)).

        We initially note that the trial court made no findings with respect to the second
alleged violation of probation listed in the warrant – that the Defendant “moved from
Robertson County to Davidson County without permission.” The record, however, does not
support a violation of probation on this ground because no proof was presented at the hearing
that the Defendant lived in Robertson County. Thus, the Defendant’s probation cannot be
revoked on this basis.

        The trial court did find that the Defendant violated the terms and conditions of his
probation “by maintaining a presence” or “establishing a presence” at the apartment on
Cheyenne Boulevard. This language, based upon the testimony of Seaborne, appears to be
from the “TBI instructions” purportedly applicable to the Defendant. Unfortunately, the
“TBI instructions” are not listed as a ground for revocation in the warrant and do not appear
anywhere in the record. Under these circumstances, the “TBI instructions” cannot be the
basis of the revocation. Moreover, we cannot determine whether the trial court intended to
revoke the Defendant’s probation based upon a violation of the first ground listed in the
warrant, that the Defendant established a primary or secondary residence within 1,000 feet
of Madison Academy, or whether the trial court actually intended to revoke the Defendant’s
probation based solely upon a violation of the “TBI instructions.” Because the trial court’s
findings are ambiguous, we are unable to determine whether the trial court properly revoked
the Defendant’s probation based upon a ground alleged in the warrant. Consequently, we are
compelled to vacate the trial court’s judgment and remand the case for the trial court to
clarify and expound upon its findings and conclusions regarding whether the Defendant
established a primary or secondary residence within 1,000 feet of Madison Academy.

                                       CONCLUSION

       For the reasons set forth above, the judgment of the trial court is vacated, and this
matter is remanded to the trial court for further findings in accordance with this opinion.


                                            _________________________________
                                            JEFFREY S. BIVINS, JUDGE

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