Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs Date: December 13, 2016
from the Circuit Court for Grundy County Nos. 4864 & 4865
Justin C. Angel, Judge
Defendant, Clyde Hobbs, appeals as of right from the Grundy
County Circuit Court's revocation of his probation and
order of confinement for eight years. The Defendant contends
that the trial court abused its discretion when it determined
that the Defendant had violated specialized conditions of his
probation. Additionally, the Defendant argues that the trial
court abused its discretion in fully revoking the
Defendant's probation without considering possible
alternatives. Following our review, we affirm the judgments
of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Jeffery Harmon, District Public Defender; and Robert G.
Morgan, Assistant Public Defender, for the Defendant, Clyde
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; J. Michael Taylor,
District Attorney General; David L. Shinn, Assistant District
Attorney General, for the appellee, State of Tennessee.
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Camille R. McMullen, and J. Ross Dyer, JJ., joined.
KELLY THOMAS, JR., JUDGE
January 9, 2013, the Defendant pled guilty to one count of
sexual battery by an authority figure in case number 4864,
and one count of attempted sexual exploitation of a minor in
case number 4865. See Tenn. Code Ann. §§
39-13-527; -17-1003. The Defendant received a six-year
suspended sentence for case number 4864 and a consecutive
two-year suspended sentence for case number 4865, resulting
in a total effective sentence of eight years of probation.
Additionally, the trial court ordered the Defendant to comply
with the requirements of the sex offender registry and
complete standardized sex offender treatment. He was ordered
to have no contact with the victim, who was one of his
nieces. On January 15, 2016, the Defendant's
probation officer issued a probation violation warrant to
revoke the Defendant's probation, alleging that the
Defendant violated the special conditions of probation for
sexual offenders. Specifically, the probation officer alleged
that the Defendant violated by accessing the Internet via a
ROKU device, using a cell phone to view images of animal
genitalia for sexual gratification, and having unsupervised
contact with minors on multiple occasions.
April 1, 2016 revocation hearing, Andrew Thorton, the
Defendant's probation officer, discussed the following
facts, which gave rise to the issuance of the warrant. Mr.
Thorton explained that he worked "in the program
supervision unit, which [was] . . . a specialized unit within
field services that supervise[d] anyone required to register
on the Tennessee Sexual Offender Registry[.]" Because
the Defendant was convicted of a sexual offense, Mr. Thorton
was assigned to supervise him, but he explained that prior to
being assigned to supervise the Defendant, Matthew Painter
was the Defendant's probation officer and that Mr.
Painter discussed the rules on the probation order with the
Defendant. Mr. Thorton explained that for individuals
convicted of a sexual offense, there was a "list of
specialized conditions that [were] imposed[.]" Mr.
Thorton identified a document, which included these
specialized probation conditions for sex offenders. The
document was signed by the Defendant, and the initials
"CAH" appeared next to each special condition. Mr.
Thornton testified that he believed these initials to be
those of the Defendant and claimed that it was "common
practice . . . to have the offender sign and initial each
rule." Mr. Thorton stated that there were twelve
specialized conditions, and the first paragraph of the
document contained "a preamble . . . [to] explain what
this document [was.]" Mr. Thorton read the following
portion of the preamble:
The conditions of probation that you signed . . . states in
part that you will obey all laws and that you will carry out
all lawful instructions given by your probation/parole
officer. The following guidelines have been established for
all offenders convicted of a sex offense as defined under
Tennessee State Law. By your signature you acknowledge that
your officer has gone over the following instructions with
Thorton testified that he had discussed these rules with the
Defendant and acknowledged that there had "been issues
with [the Defendant] and hi[s] being compliant with those
rules." Specifically, Mr. Thorton alleged that the
Defendant violated "Rule Two . . . and Rule Nine of the
specialized conditions." Rule Two stated,
I will not obtain Internet access on my computer unless my
officer has given me written permission for Internet access.
I will not utilize an electronic device for any sexually
oriented purpose. I further consent to the search of any
electronic device, software, or electronic data storage
device at any time by my officer.
Thorton said that the Defendant committed "two actions
that violate[d] that rule." First, he alleged that the
Defendant accessed the Internet through a "ROKU device
in his bedroom." He explained that "[t]he ROKU
device [was] a device that can access the Internet" and
that the Defendant "was using that device to access
online movies." Mr. Thorton confirmed that he saw the
ROKU device and that "it was hooked up to a live
Internet connection." On cross-examination, he stated
that the ROKU device was "attached by cables to the
TV" and that "one of the sisters said that they had
bought it for" the Defendant and "installed
Mr. Thorton asserted that the Defendant violated Rule Two by
"utilizing an electronic device for a sexually oriented
purpose." He explained that "on several occasions
leading up to this alleged violation, [the Defendant] was
found to be in possession of a cell phone that had multiple
images of . . . animal genitalia." Mr. Thorton stated
that he had warned the Defendant on previous occasions about
"deviant sexual fixations[, ]" and he instructed
the Defendant "to delete the images and to no longer
have any images" on his cell phone. On December 18,
2015, Mr. Thorton again found the Defendant in possession of
a cell phone that contained "several hundred images . .
. depicting animal genitalia." He elaborated, "The
photos were . . . of multiple types of animals, horses, dogs,
. . ., monkeys, focusing either on the vaginal area or an
erect penis." The Defendant gave his phone to Mr.
Thorton voluntarily so that the images "could be further
investigated." The phone with these images was found in
a drawer in the Defendant's bedroom, and the Defendant
admitted to Mr. Thorton that "he was using the images to
attempt to masturbate." Mr. Thorton asserted that this
was "a violation of a prohibition . . . against using an
electronic device for a sexually oriented purpose."
Mr. Thorton alleged that the Defendant violated Rule Nine of
the special conditions of his probation. Rule Nine stated,
If convicted of an offense against a minor, I will not date,
befriend, reside or unite with anyone who has children under
the age of 18, except my own children unless further
restricted by applicable law or court order. I will report
all incidental contact with children to my treatment provider
and my officer. I will not enter into contact with any child
under 18 or anyone who is unable to give consent due to
mental, physical, or emotional limitations unless an adult is
present whom my officer and my treatment provider have
approved in advance, in writing, as a chaperone.
Defendant was not permitted to be around anyone under the age
of eighteen unless he was supervised by a "chaperone
approved through [the Defendant's] treatment
provider." The Defendant received sex offender treatment
in Chattanooga, and Mr. Thorton stated that the Defendant
"had chaperones approved by that treatment provider that
allowed him to have some contact with minors." Mr.
Thorton maintained that the ...