Laying in bed with an escapee in his mother’s home is not substantial evidence of the offense of accessory after the fact

In an old but instructive case, the Tennessee Court of Criminal Appeals reversed a trial court’s revocation of a defendant’s probation.  A trial court may revoke a defendant’s probation and order the imposition of the original sentence upon finding by a preponderance of the evidence that a person has violated a rule of probation.  T.C.A. §§ 40-35-310, -311.  The decision to revoke probation rests within the sound discretion of the trial court, State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991), and, on appeal, is subject to an abuse of discretion standard of review.  State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).  The trial court abuses its discretion when “the record contains no substantial evidence to support the conclusion of the trial court that a violation of probation has occurred.”

The offense of accessory after the fact is defined as:

(a) A person is an accessory after the fact who, after the commission of a felony, with knowledge or reasonable ground to believe that the offender has committed the felony, and with the intent to hinder the arrest, trial, conviction or punishment of the offender:
(1) Harbors or conceals the offender;
(2) Provides or aids in providing the offender with any means of avoiding arrest, trial, conviction or punishment; or
(3) Warns the offender of impending apprehension or discovery.

Here, the defendant was on probation for attempted accessory after the fact after an officer observed her driving a vehicle with her husband, an escaped felon.  Rule 1 of her probation stated,

[The defendant] will not violate any law; the violation of the law shall be construed a violation of probation.  Any new violations are to be reported to the probation officer within 72 hours.  New law violations may result in a violation warrant being issued.

The month after her conviction, the defendant’s husband once again escaped from jail.  At that time, the sheriff’s department questioned the defendant about her husband’s escape and told her to “bring him in.”  Two months later, the sheriff’s department received information that the husband was in his mother’s trailer.  Upon raiding the trailer, the officers found the husband and the defendant in bed.

Subsequently, a corporal charged the defendant with accessory after the fact and the defendant’s probation officer executed an affidavit alleging that the defendant had violated Rule 1 of her probation.  Interestingly, at a combined preliminary hearing and probation revocation hearing, the general sessions court dismissed the charge for lack of probable cause but revoked the defendant’s probation.

The defendant then timely appealed the revocation of her probation to the White County Criminal Court, which conducted a de novo probation violation hearing.  At the hearing, the probation officer testified that the sole basis for the probation violation warrant was the charge for accessory after the fact.  Also, the corporal testified that the defendant and her escapee husband were in bed together in his mother-in-law’s trailer.  Based on the testimony of the probation officer and the corporal, the court found by a preponderance of the evidence that the defendant had violated the terms of her probation and revoked her probation.

Reviewing the record, the court of criminal appeals found “no substantial evidence establishing by a preponderance of the evidence that the defendant’s presence with her escaped husband in his mother’s home made her an accessory after the fact as defined by the statute.”

State v. Brown, No. M2000-00792-CCA-R3-CD (Tenn. Crim. App. Sept. 19, 2001)

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