Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs July 16, 2014
Appeal from the Circuit Court for Hickman County No. 125120CR Timothy L. Easter, Judge
Dale Quillen, Nashville, Tennessee, for the appellant, Randall Wayne Cagle.
Herbert H. Slatery, III, Attorney General and Reporter; Clarence E. Lutz, Senior Counsel; Kim R. Helper, District Attorney General; and Kate Yeager, Assistant District Attorney General, for the appellee, the State of Tennessee.
Thomas T. Woodall, P.J., delivered the opinion of the Court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.
THOMAS T. WOODALL, PRESIDING JUDGE
The record reflects that general probation Rule number 12 which Defendant was required to follow as a condition of probation stated as follows: "If convicted of a sex offense, I will abide by the Specialized Probation Conditions for Sex Offenders as adopted by the Board of Probation and Parole." There were twelve "Specialized Probation Conditions for Sex Offenders." The probation violation warrant alleged that Defendant was in violation of special conditions numbers 3 and 5, which state as follows:
3. I will attend, participate in, and pay for treatment or counseling with an approved treatment provider as deemed necessary by the Board, the Court, or my Officer. I will continue in such treatments instructed for the duration of supervision unless my treatment provider, in consultation with my Officer, instructs me in writing that I have satisfactorily completed treatment.
5. I will submit to and pay for a polygraph assessment and evaluation as instructed by the Board, the Court, my treatment provider, or my Officer.
When announcing the decision to revoke probation, the trial court specifically found that Defendant had violated special condition number 3. No mention was made of any finding that special condition number 5 had been violated. We conclude that the trial court implicitly found that Defendant was not in violation of special condition number 5. Therefore, on remand, the allegation in this probation violation warrant that Defendant violated special condition number 5 shall not be considered because it has in effect been dismissed by the trial court.
At the probation violation hearing, Susan Siedentop testified that she was employed by the Department of Correction as a probation officer in the Sex Offender Unit. She was Defendant's probation officer. Ms. Siedentop testified that Defendant completed his psychosexual evaluation. A recommendation of the evaluation was that Defendant obtain sex offender treatment. Ms. Siedentop described the sex offender treatment plan as follows:
The treatment [was] to be conducted in an outpatient setting, containment model, group counseling, supervision and polygraph assessments. He should not have any use of pornography. He was to submit to regular polygraph exams, to promote full disclosure of his sexual history, responsibility for his behavior and monitor compliance with treatment and rules of supervision, and he was to comply with all rules of supervision regarding contact with children and he was to undergo random drug testing.
According to Ms. Siedentop, Mr. Jim Tracy of Associates for Sexual Assault Prevention, LLC, was assigned to perform sex offender treatment for Defendant. Mr. Tracy directed Defendant to submit to a polygraph examination regarding Defendant's sexual history. Ms. Siedentop's explanation for the reason Defendant was not in compliance with special condition number 3 was that,
[Defendant] went to the [polygraph examination] appointment and during the polygraph examination did not want to answer all of the questions asked of him and ended up leaving the assessment. Because he didn't [sic] comply with the rules of the treatment contract, he was dismissed from sex offender treatment.
Ms. Siedentop testified that she then "violated [Defendant] on his probation." She also testified in response to further questioning by the State that she had "had lots of contact with [Defendant] on this issue, " and Defendant had "very clearly told" Ms. Siedentop that he "does not want to take the polygraph examination." Ms. Siedentop further testified that Defendant told her he did not want to take the polygraph examination because "he had some victims that he does not want to disclose."
Jack Tracy testified that he is a licensed professional counselor and the owner of a counseling service known as Associates for Sexual Assault Prevention. The business specializes in the treatment of convicted sex offenders who are serving a sentence on probation or parole. Mr. Tracy did an assessment of Defendant beginning with a psychosexual evaluation. After the evaluation was completed Mr. Tracy concluded that Defendant "was in denial of the facts of the offense." This resulted in Defendant's being put into a pretreatment process, which is placement into a treatment group with three basic goals: (1) accept responsibility for his criminal sexual behavior "as described on the affidavits;" (2) complete a sexual history that must be verified by a polygraph exam; and (3) demonstrate compliance with the rules of probation.
Defendant completed a sexual history questionnaire. He also talked with Mr. Tracy and his staff and "totally denied" having had sexual contact with any underage victims. Defendant was ordered to take a polygraph examination. The polygraph examiner had a conversation with Defendant prior to the polygraph examination. According to Mr. ...