        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 2, 2010

             STATE OF TENNESSEE v. DANIEL LEON MCCAIG

                  Appeal from the Circuit Court for Dyer County
           Nos. C05-474, 08-CR-171 and 08-CR-172     Lee Moore, Judge




                 No. W2009-02097-CCA-R3-CD - Filed July 22, 2010


The Defendant, Daniel Leon McCaig, appeals from the order of Dyer County Circuit Court
revoking his probation. In May 2007, the Defendant pleaded guilty to attempted sexual
battery and received a five-year sentence. He was placed on probation. Thereafter, on July
22, 2008, he pleaded guilty to a violation of the sex offender registry law and theft under
$500. He was sentenced to an effective sentence of two years for these new convictions, said
sentence to be suspended and served on probation. This new sentence was to be served
consecutively to the five-year sentence, resulting in an effective seven-year sentence on
probation. Subsequently, a violation warrant was issued, wherein it was alleged that the
Defendant violated the conditions of his probation. The violation report was later amended.
Following a hearing, the trial court revoked the Defendant’s probationary sentence and
ordered that his original seven-year sentence to the Department of Correction be reinstated.
On appeal, the Defendant argues that the evidence does not support full revocation of his
probation. After a review of the record, we conclude that the trial court did not abuse its
discretion by revoking the Defendant’s probation. The judgment of the trial court is affirmed.

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

D AVID H. W ELLES, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

James E. Lanier, District Public Defender; Timothy Boxx, Assistant Public Defender,
Dyersburg, Tennessee, for the appellant, Daniel Leon McCaig.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; C. Phillip Bivens, District Attorney General; and Karen W. Burns, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                         OPINION

                                   Factual Background

       In Case No. C05-474, a Dyer County grand jury indicted the Defendant for rape of a
child. On May 15, 2007, the Defendant pleaded guilty to attempted aggravated sexual
battery, a Class C felony. See Tenn. Code Ann. § 39-13-504. Pursuant to the terms of the
plea agreement, he received a five-year sentence, which was suspended, and the Defendant
was placed on probation. The Defendant also agreed to register as a sex offender.

       On April 14, 2008, the Defendant was charged with violation of sexual offender
residential restrictions, a Class E felony, and theft under $500, a Class A misdemeanor, (Case
Nos. 08-CR-171 and 08-CR-172). See Tenn. Code Ann. §§ 39-14-103, 40-39-211. He
pleaded guilty to those charges on July 22, 2008, and he was sentenced to two years for the
violation of the sex offender registry and eleven months and twenty-nine days for the theft
conviction. The new sentences were to be served concurrently with one another but
consecutively to the prior five-year sentence—a seven-year sentence in total. He was again
placed on probation.

       On July 19, 2007, the Defendant’s probation officer filed a violation report on the
Defendant for failure to report, failure to provide proof of employment, failure to pay
supervision fees, failure to get permission to change his address, failure to attend sex
offender counseling, and absconding. In January 2008, the trial court revoked his probation.
The Defendant was ordered to serve sixty days in jail, followed by a return to probation at
the conclusion of his incarceration.

        Thereafter, another probation violation warrant was issued on October 20, 2008.
According to the warrant, the Defendant’s probation officer sought to revoke the Defendant’s
probation because he failed to provide proof of work or a work search, changed his address
without his officer’s permission, failed to report, failed to pay supervision fees, failed to
attend sex offender counseling, and failed to re-register as a sex offender. A probation
violation report was issued in conjunction with the warrant, detailing the allegations against
the Defendant. An amended violation report was filed in April 2009. In the amended report,
in addition to expounding on the original allegations, it was stated that the Defendant was
arrested in Missouri, although he did not have permission from his probation officer to leave
the state.

      A probation revocation hearing was held on June 29, 2009. Charles Smith, the
Defendant’s probation officer, testified that he was assigned to supervise the Defendant. Mr.
Smith confirmed that the Defendant’s probation had been previously revoked for a period

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of time. When asked how the Defendant behaved after he was released, Mr. Smith replied
that, “[i]n the beginning he was reporting, tried to comply. But shortly after, like I said, in
October the 20th of 2008 I had to file another violation.” Mr. Smith then detailed the
allegations contained in the violation warrant. As for the allegation that the Defendant
changed residences without permission, Mr. Smith explained that he conducted two home
checks; however, the Defendant was not at home during either. According to the
Defendant’s father, the Defendant resided there but was at work on both occasions.
Thereafter, on October 7, Mr. Smith phoned the residence and spoke with the Defendant’s
mother. The Defendant’s mother stated that she had not seen her son since October 3, when
he got mad at her and left the home. Additionally, the Defendant was required to register
quarterly as a sex offender, and he failed to do so. Mr. Smith then testified about the
allegations in his follow-up report filed on April 22, 2009, wherein he detailed that the
Defendant was arrested in Missouri on April 15, 2009, when he did not have permission to
leave Tennessee. In Mr. Smith’s opinion, the Defendant was “unsupervisable.”

        On cross-examination, Mr. Smith confirmed that the Defendant was not permitted to
work as a roofer, his chosen profession, due to the fact that children may be present inside
the residences. Mr. Smith could not recall the Defendant ever telling him that he could not
afford sex offender counseling.

        The Defendant’s mother testified. She explained that the Defendant was still living
at her home when Mr. Smith called; they had just gotten into an argument, and the Defendant
“went to his girlfriend’s.” She testified that the Defendant was working as roofer with her
and her husband at residences where there were no children.

        The Defendant claimed that he had been “repeatedly” attempting to obtain work by
going to factories, but that they would not hire him due to his criminal background. He
denied that he had ever changed residences and said he still resided with his mother at the
time of the hearing. When asked about his failure to report, failure to re-register as a sex
offender, and failure to attend counseling, the Defendant stated that Mr. Smith threatened to
violate him, and he was “scared.” The Defendant also claimed that he was unable to attend
counseling because he could not afford it. According to the Defendant, he went to Missouri
to find work, so he could pay his fines. He stated that he had paid $1,400 toward his fines.

        On cross-examination, the Defendant stated that counseling was $25 per week or $50
for a private session. The Defendant confirmed that he lived with his parents and that they
provided him with a place to live, food, and clothing, at no cost to him. He had no bills other
than his court costs and fines. He admitted that his probation had previously been revoked
for violating similar rules.



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       At the conclusion of the hearing, the trial court revoked the Defendant’s probation,
reinstated his original seven-year sentence, and remanded him to the Department of
Correction, concluding as follows:

               All right, . . . you’ve been here before on very similar violations. In
       January of 2008 an order was entered; you were given a partial revocation at
       that time. You acknowledged your violations and now in less than a year after
       that we have the same thing happening again. You know the problem, the
       problem is not that you’re not working. The problem is that you simply aren’t
       gonna follow the rules. You’re gonna do what you want to do. There is
       nothing in the probation—There is nothing in the probation that makes
       you—would make you be violated if you didn’t get a job. All you’ve got to do
       is go up there regularly and showing them that you’re trying to get a job.
       Don’t tell me that you don’t know that because we’ve been through that one
       time before already.

               And changing your residence: You get mad at your mama or you get
       mad at your daddy and so you leave and go and spend—and you stay with your
       girlfriend. That’s violating your probation.

              You failed to report. I don’t care whether it’s because you think you’ve
       been violated or what. The truth of the matter is if you thought you were
       violated then you should have reported to jail. You knew exactly what was
       going on with that. You weren’t reporting in September, October of '08.
       Didn’t report ever after that and didn’t—And you tell me here today that you
       were working, roofing during this time for your father and making sure that
       you weren’t violating your probation and yet you don’t ever have money to go
       get your sex offender counseling and you don’t re-register. We don’t—We
       can’t have it. We’re not gonna have it. You simply don’t care about the rules
       and you don’t care about the probation.

It is from the order of revocation that the Defendant now appeals.

                                        ANALYSIS

      The Defendant contends that the evidence adduced at the hearing did not support full
revocation of his sentence. Specifically, the Defendant states as follows:

       [T]he record shows that the [D]efendant did not have the ability to abide by the
       terms and conditions of probation as required by his probation officer. The

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       [D]efendant was prohibited from working in his profession and all of his other
       problems flowed from his lack of ability to find work. He was unable to pay
       for supervision fees and counseling, so he was threatened with a violation.
       When he was threatened for not paying, the [D]efendant became scared and
       failed to report. When he could not find work that complied with his probation
       officer’s requirements, the [D]efendant had to travel out-of-state.

We note that the Defendant does not challenge the grounds supporting revocation, only that
he could not comply with the requirements.

        A trial judge is vested with the discretionary authority to revoke probation if a
preponderance of the evidence establishes that a defendant violated the conditions of his or
her probation. See Tenn. Code Ann. §§ 40-35-310, -311(e); State v. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001). “The proof of a probation violation need not be established beyond a
reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and
intelligent judgment.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

       When a probation revocation is challenged, the appellate courts have a limited scope
of review. This Court will not overturn a trial court’s revocation of a defendant’s probation
absent an abuse of discretion. See Shaffer, 45 angelaschneider@example.org. For an appellate court to be
warranted in finding that a trial judge abused his or her discretion by revoking probation,
“there must be no substantial evidence to support the conclusion of the trial court that a
violation of the conditions of probation has occurred.” Id.

        Based upon our review of the record, we conclude that there is substantial evidence
to support the conclusion of the trial court that a violation of the conditions of probation
occurred. The trial court noted that the Defendant’s probation had already been revoked once
on similar allegations. While the Defendant maintained that he could not find employment,
he offered no proof of any attempts to find work. He changed residences without permission
and did not attend counseling as ordered. Although he had no living expenses and worked
periodically, he failed to pay for his supervision fees. The proof also showed that he failed
to report and failed to re-register as a sex offender. He was arrested in Missouri, without
permission from his probation officer to leave the state. The Defendant continued to fail to
follow the rules of his probationary sentence. The trial court was statutorily authorized to
reinstate the Defendant’s original seven-year sentence. See Tenn. Code Ann. §§ 40-35-310,
-311(e), -36-106(e)(4). Accordingly, we conclude that the trial court neither erred nor abused
its discretion in revoking the Defendant’s probation. This issue is without merit.




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                                   CONCLUSION

      Based upon the foregoing, the judgment of the Dyer County Circuit Court revoking
the Defendant’s probation and ordering reinstatement of his seven-year sentence in the
Department of Correction is affirmed.

                                               _________________________________
                                               DAVID H. WELLES, JUDGE




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