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State v. Hobbs

Court of Criminal Appeals of Tennessee, Nashville

March 23, 2017

STATE OF TENNESSEE
v.
CLYDE HOBBS

          Assigned on Briefs Date: December 13, 2016

         Appeal from the Circuit Court for Grundy County Nos. 4864 & 4865 Justin C. Angel, Judge

         The 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.

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

          B. Jeffery Harmon, District Public Defender; and Robert G. Morgan, Assistant Public Defender, for the Defendant, Clyde Hobbs.

          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.

          D. Kelly Thomas, Jr., J., delivered the opinion of the court, in which Camille R. McMullen, and J. Ross Dyer, JJ., joined.

          OPINION

          D. KELLY THOMAS, JR., JUDGE

         FACTUAL BACKGROUND

         On 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.[1] 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.

         At the 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 you.

          Mr. 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.

         Mr. 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 it."

         Second, 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."

         Also, 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.

         The 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 ...


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