State of Tennessee v. Lemont E. Blair

• Court: Court of Criminal Appeals of Tennessee
• Decided: June 3, 1998
• Docket: 03C01-9705-CR-00176
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1998 SESSION June 3, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk

STATE OF TENNESSEE ) ) 03C01-9705-CR-00176 Appellee ) ) KNOX COUNTY v. ) ) Hon. Richard R. Baumgartner, Judge LEMONT E. BLAIR ) ) (Community Corrections Revocation) Appellant. ) )

For the Appellant: For the Appellee:

Gerald L. Gulley, Jr. John Knox Walkup Baker, McReynolds, Byrne, Attorney General & Reporter O’Kane, Shea & Townsend P.O. Box 1708 Clinton J. Morgan Knoxville, TN. 37901-1708 Assistant Attorney General 425 Fifth Avenue North Randall E. Reagan 2nd Floor, Cordell Hull Building 602 Gay Street, Ste. 905 Nashville, TN. 37243-0493 Knoxville, TN. 37902 Randall Eugene Nichols District Attorney General

Paula R. Gentry Assistant District Attorney General P.O. Box 1468 Knoxville, TN. 37901-1468

OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM M. BARKER, JUDGE OPINION

The appellant, Lemont E. Blair, appeals as of right the Knox County Criminal

Court’s revocation of his community corrections sentence. We affirm the judgment of

the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

In 1995, the appellant pled guilty to possession of cocaine with the intent to sell,

possession of marijuana with the intent to sell, and possession of a deadly weapon, to

wit: a hand grenade. The trial court sentenced the appellant to ten (10) years on

each count and ordered the sentences to be served concurrently in a community-

based alternative to prison (“CAPP”).1

After serving approximately seven months in the community corrections

program, the appellant was arrested pursuant to a CAPP violation warrant. The trial

court conducted an evidentiary hearing and received testimony from witnesses

including appellant’s CAPP supervisor, Katherine Hancock. Ms. Hancock testified that

the appellant complied with the conditions of his sentence until around May 1996.

She stated that at that point, he began missing both his curfew and his weekly

meetings with supervisors and support groups. Moreover, Ms. Hancock testified that

the appellant had failed to pay any money towards his court costs.

Through additional testimony, the State also sought to prove that the appellant

was involved in a robbery and shooting on June 25, 1996. The incident occurred

during the early morning hours at the Walter Taylor Housing Project in Knoxville,

Tennessee. According to eyewitness testimony, several black males surrounded and

assaulted the victim, Ryan Simmons, in a nearby parking lot. One witness, Jennifer

Smith, testified that she heard two gun shots and observed the appellant dragging the

1 The conditions of appellant’s CAPP included: (1) compliance with all state and federal laws; (2) avoidance of alcoholic beverages, illegal drugs, and beer taverns; (3) reporting to CAPP officials of any traffic citations or other arrests; (4) no fraternizing with any persons known to be dealers or users of illegal drugs; (5) no possession or ownership of a firearm or weapon; (6) maintenance of lawful employment; (7) compliance with an evening curfew; (8) monthly payment of court costs; (9) completion of 96 hour s of c om mu nity se rvice work per ye ar; (1 0) pa yme nt of a yearly c om mu nity co rrec tions fee in the amount of $60.00 dollars; (11) payment of restitution to a victim if applicable; (12) limitations on travel within the state; (13) restrictions on setting dates for marriage or contracting any major debts; and (14) par ticipation in D ay Repo rting Cen ter activities.

2 victim’s body behind a dumpster. Ms. Smith, however, did not see the shooting and

was unable to identify the appellant as the gunman.

Detective Terry Clowers of the Knoxville Police Department testified that the

appellant was arrested and questioned about the shooting a few hours after police

arrived on the scene. The appellant admitted that he was at the housing project when

the shooting occurred; however, he stated that he merely happened upon the injured

victim and pulled him behind a dumpster for safety. He further indicated to Detective

Clowers that he was working at the housing project that evening as a barber.

Detective Clowers interviewed other witnesses who placed the appellant at the scene

before and after the shooting. However, there was no evidence that appellant was

involved in the crime and he was never charged.

Although appellant disputed his involvement in the shooting, he conceded that

he had failed to comply with certain conditions of his community corrections sentence.

The trial court determined that appellant was in material violation of CAPP based upon

his curfew violations and his failure to attend weekly meetings. 2 The judge noted that

he had warned appellant at an earlier hearing that non-compliance in the community

corrections program would result in a custodial sentence.3 Accordingly, the trial judge

revoked community corrections and ordered the appellant to serve the remainder of

his sentence in the Tennessee Department of Correction.

A trial judge may revoke a community corrections sentence upon finding that

the defendant has violated the conditions of his sentence by a preponderance of the

evidence. See Tenn. Code Ann. § 40-35-311(d) (Supp. 1995). The judgment of the

trial court in that regard will not be overturned on appeal absent an abuse of

discretion. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v.

2 The trial court was unwilling to conclude that appellant was involved in the crime at the housing proje ct. Ho weve r, the c ourt d eterm ined t hat a ppe llant’s pres enc e at th e crim e sc ene was proo f of his curfew violation.

3 The trial court conducted a hearing on April 26, 1996, to check appellant’s progress in the community corrections program. At that hearing, the court apparently found that appellant had been sporad ic in his attend ance o f week ly CAPP m eetings.

3 Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981), perm. app. denied (Tenn.

1981).

In this case, we conclude that the evidence of appellant’s CAPP violations was

sufficient for the trial judge to make a conscientious and intelligent judgment. The

appellant has conceded that he missed weekly meetings with his CAPP groups, he

violated his curfew, and he failed to pay court costs. As such, the revocation of his

community corrections sentence was proper.

The judgment of the trial court is affirmed pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals.

_____________________________ WILLIAM M. BARKER, JUDGE

CONCUR:

____________________________ JOSEPH M. TIPTON, JUDGE

____________________________ J. CURWOOD WITT, JR., JUDGE