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State v. Usrey

Court of Criminal Appeals of Tennessee, Nashville

April 9, 2018

STATE OF TENNESSEE
v.
SHANE T. USREY

          Assigned on Briefs March 28, 2018 at Knoxville

          Appeal from the Criminal Court for White County No. CR6493, CR7510, CR6120 Gary McKenzie, Judge.

         Shane T. Usrey, the Defendant, pled guilty to theft of property over the value of $500 in case numbers CR6120, CR6493, and CR7510. In 2017, the Defendant was arrested for violating the terms of his probation by committing domestic assault and aggravated assault. After a hearing, the trial court fully revoked the Defendant's probation in all three cases and imposed the original sentences. On appeal, the Defendant argues that: (1) the trial court should not have placed any probative value on the victim's testimony because she was intoxicated at the time of the offenses; and (2) the evidence was insufficient for the trial court to have found that the Defendant violated his probation. After a thorough review of the facts and applicable case law, we affirm.

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

          J. Patrick Hayes, Cookeville, Tennessee, for the appellant, Shane T. Usrey.

          Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Counsel; Bryant C. Dunaway, District Attorney General; and Bret Gunn, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which John Everett Williams and J. Ross Dyer, JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE.

         I. Factual and Procedural History

         The Defendant pled guilty to theft of property over the value of $500 in case number CR6120 on June 27, 2013. The Defendant received a sentence of one year suspended to supervised probation to be served consecutively to a prior violation of probation sentence. In case number CR6493, the Defendant pled guilty to theft of property over the value of $500 on January 9, 2014. His two-year sentence was suspended to supervised probation to be served consecutively to case numbers CR5938 and CR6120. In case number CR7510, the Defendant pled guilty on November 6, 2015, to theft of property over the value of $500 and received a sentence of three years. The trial court ordered the Defendant to serve three months in confinement and the remaining two years and nine months of the sentence was suspended to supervised probation to be served consecutively to a prior "TDOC" sentence.[1]

         On March 2, 2017, Deputy James Reels of the White County Sheriff's Office ("WCSO") filed an incident report alleging that the Defendant committed domestic assault against his wife by slapping her and burning her with a lit cigarette. On March 20, Melanie Cowen filed a probation violation warrant which alleged that the Defendant violated the terms of his probation by failing to obey state laws and by engaging in assaultive behavior. On March 30, 2017, Sergeant Allen Hale arrested the Defendant on a violation of probation warrant. The probation violation warrant was later amended to include the allegation that, on March 10, 2017, the Defendant committed two counts of domestic assault and one count of aggravated assault.

         At the probation violation hearing, Ms. Cowen testified that she worked at the Tennessee Board of Probation and Parole ("the Board") as the Defendant's probation officer. Ms. Cowen stated that the Defendant allegedly committed two counts of domestic assault on March 2, 2017. Ms. Cowen amended the affidavit to the probation violation warrant to cite the Defendant for committing two counts of domestic assault and one count of aggravated assault on March 10, 2017. She stated that she filed an "Affidavit Violation of Probation" on March 20, 2017, which alleged that the Defendant had committed new criminal offenses. On cross-examination, Ms. Cowen testified that the Defendant's probation began on November 6, 2015.[2] She noted that this was the first probation violation that had been filed against the Defendant.

         Cara Usrey testified that she was the Defendant's wife and that, on March 2, 2017, she and the Defendant were at their residence, along with several of her family members. She and the Defendant had been drinking, and they began arguing. The Defendant slapped her. The Defendant also had a lit cigarette in his hand which burned her neck. After the assault, Mrs. Usrey's niece called the police, and the Defendant left the residence. The police responded and spoke with Mrs. Usrey and her family members. Shortly after the police left the residence, the Defendant returned. Mrs. Usrey shut the door to block the Defendant from entering, but the Defendant "kicked the bottom of the door in." The Defendant pushed Mrs. Usrey, and Mrs. Usrey's niece stepped in between them. The Defendant left the residence before the police responded for a second time. On March 10, 2017, the Defendant, Mrs. Usrey, and her three-year-old son went to the Highway 84 Market. While she was in the store, a store employee informed Mrs. Usrey that the Defendant had pushed Mrs. Usrey's son out the door. Mrs. Usrey stated that she did not see the Defendant's actions and that her son was not misbehaving. Mrs. Usrey, her son, and the Defendant returned to their residence, where the Defendant grabbed Mrs. Usrey's head, shook her, and "threw her around." Mrs. Usrey's neighbors called the police, but the Defendant left before they arrived. The police later located the Defendant.

         On cross-examination, Mrs. Usrey testified that, while she and the Defendant had argued previously, neither had been arrested. She stated that, on March 2, she had been drinking prior to the altercation with the Defendant. She explained that she was "probably drunk" and that this could have interfered with her memory of the event. She also stated that, on ...


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