IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1998 October 13, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CC-00290 ) Appellee, ) ) ) MAURY COUNTY VS. ) ) HON. JAMES L. WEATHERFORD JOHNNY DAVIDSON, ) JUDGE ) Appe llant. ) (Direct Ap peal)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney General and Reporter Nashville, TN 37204 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
MIKE BOTTOMS District Attorney General
WILLIAM C. BRIGHT Assistant District Attorney 809 South Main Street Suite 200 Columbia, TN 38401
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On August 14 , 1996, th e Appe llant, John ny David son, plea ded gu ilty to
four counts of selling cocaine, one count of selling marijuana, and one count of
evading arrest. As a result, the Appellant received an effective sentence of
twelve years unsupervised probation with the special condition that the Appellant
contact the judge or his probation officer before re-entering the State of
Tennessee. On May 9, 1997, the trial court re voked his pro bation . On ap peal,
the Appellant raises the following issues for review:
1) whether the trial c ourt co rrectly re voked the Ap pellan t’s probation after law enforcement officers found cocaine on the Appellant’s person; 2) whether the Appellant’s presence in the State of Tennessee provided sufficient grounds for revocation, even though the trial court did not rely on this fact in revoking his probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
At the probation revocation hearing, Howard Mangrum of the Ma ury Cou nty
Sher iff’s Department testified that on March 9, 1997, he was working security for
Maury Regional Hospital when the Appellant was brought in for treatment of a
gunshot wound. When Mr. Mangrum entered the emergency room, he noticed
that the Appellant was clutching a bag in his hand. The Appellant was holding
the bag in a tight grip, and Mr. Mangru m wa s initially unable to pry his fingers
open. Mr. Mangru m testified that at this time, the Appellant wa s “just lying there
motionless.” After Mr. Mangrum removed the bag from th e App ellant’s grip, he
-2- noticed that it appeared to contain crack cocaine. Th e contents of the bag were
later identified as coca ine base .
Kianna Mostella, a friend of the Appellant, testified that she was with the
Appellant when he was shot and that she did no t see a ny dru gs in his possession
at that time. In additio n, the A ppella nt testifie d that h e did not ha ve any drugs in
his posse ssion wh en he w as sho t and that h e was u ncons cious at the time he
was bro ught to the hospital e merge ncy room .
At the revocation hearing, the State argued that the Appellant’s probation
shou ld be revoked because he had entered the State of Tennessee without
permission and because he was found with coca ine in his po ssessio n. In
revoking the Appellant’s probation, the trial court relied on the fact that the
Appellant had been found with co caine in his possession and not on the fact that
he had been present in the State of Tennessee. The trial court stated:
On this pro vision a bout le aving th e state , now th at -- in other words, I would n’t feel comfortable in just ord ering som ebody to leave the state. I wouldn’t, unde r these circum stances wh ere he says he came to help out his grandmother who was sick at the tim e. I wouldn ’t revoke him on that. As far as th e coc aine in his hand , that’s s ufficien t for me . I’m satisfied by the preponderance of the evidence that he possessed this cocaine, crack cocaine, and I’m going to revoke his probation and his sentence, twe lve year sen tence, w ill be served .
POSSESSION OF COCAINE
The Appellant contends that the trial court erred in revoking his probation
because he was unconscious at the time he was found in possession of the
cocaine and because there is no proof that he knowingly or intentionally
-3- possessed cocaine. Specifically, the Appellant contends that abse nt proof o f a
culpa ble menta l state, there is no evide nce tha t his cond uct was criminal and
thus, no basis for revoking his probatio n. The circumstances upon which
probation can be revoked are specified in Tennessee Code Annotated § 40-35-
311(d):
If the trial ju dge s hould find that the Appellant has violated the conditions of probation and suspension by a preponderance of the evidence, the trial judge shall ha ve the r ight by o rder du ly enter ed up on the minutes of the court, to revoke the probation and suspension of sentence and cause the Appellant to com men ce the execu tion of th e judg men t as orig inally entered, or otherw ise in acco rdance with § 40-3 5-310; p rovided, that in case of such revocation of probation and suspen sion, the Appellant has the righ t to app eal.
Tenn. Code Ann. § 40-35-311(d) (1997). The Tennessee Supreme Court has
stated that under this section:
The judgment of the trial court in this regard will not be disturbed on appeal unless it appears that there has been an abuse of discretion. In order for a reviewing court to be warranted in finding an abuse of discretion in a probation revocation case, it must be established that the record contains no substantial evidence to support the conclusion of the trial judg e that a violation of the conditions o f probation has occ urred. T he proo f of a probation violation need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and intelligent jud gmen t.
State v. Harkins, 811 S.W.2d 79, 82 (T enn. 19 91). Thus , “[t]he revoca tion of a
suspended sente nce is c omm itted to th e sou nd judicial discretion of the trial
judge, and h is decis ion on the m atter w ill not be revers ed on appe al unle ss it
appears that the trial judge has acted arbitrarily in the ma tter.” State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981) (citing Finley v. Sta te,
214 Ten n. 149, 378 S .W.2d 169 (1964 )).
-4- In this case, there was sufficient evidence for the trial court to revoke the
Appe llant’s probation under Tennessee Code Annotated § 40-35-311 for violating
the condition s of prob ation. Inde ed, “[u]nd er this sec tion, compliance with our
state laws is an autom atic condition . . . .” State v. Stub blefield , 953 S.W.2d 223,
225 (Tenn. Crim. A pp. 199 7). There was su fficient eviden ce for the tria l court to
find that the Appellant had violated the conditions of his probation by possessing
cocaine.1 Mr. Mangrum testified that the Appellant had a bag of cocaine in his
hand and that he would not let go of the bag. In fact, Mr. Mangrum testified that
the Appe llant initia lly had such a tight grip on the bag that he w as unable to p ry
the Appellant’s fingers open. Further, Mr. Mangrum never testified that the
Appellant was un conscio us at the time he was holding the bag, only that the
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED JULY SESSION, 1998 October 13, 1998
Cecil W. Crowson STATE OF TENNESSEE, ) Appellate Court Clerk C.C.A. NO. 01C01-9707-CC-00290 ) Appellee, ) ) ) MAURY COUNTY VS. ) ) HON. JAMES L. WEATHERFORD JOHNNY DAVIDSON, ) JUDGE ) Appe llant. ) (Direct Ap peal)
FOR THE APPELLANT: FOR THE APPELLEE:
JOHN E. HERBISON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney General and Reporter Nashville, TN 37204 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashville, TN 37243-0493
MIKE BOTTOMS District Attorney General
WILLIAM C. BRIGHT Assistant District Attorney 809 South Main Street Suite 200 Columbia, TN 38401
OPINION FILED ________________________
AFFIRMED
JERRY L. SMITH, JUDGE OPINION
On August 14 , 1996, th e Appe llant, John ny David son, plea ded gu ilty to
four counts of selling cocaine, one count of selling marijuana, and one count of
evading arrest. As a result, the Appellant received an effective sentence of
twelve years unsupervised probation with the special condition that the Appellant
contact the judge or his probation officer before re-entering the State of
Tennessee. On May 9, 1997, the trial court re voked his pro bation . On ap peal,
the Appellant raises the following issues for review:
1) whether the trial c ourt co rrectly re voked the Ap pellan t’s probation after law enforcement officers found cocaine on the Appellant’s person; 2) whether the Appellant’s presence in the State of Tennessee provided sufficient grounds for revocation, even though the trial court did not rely on this fact in revoking his probation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.
FACTS
At the probation revocation hearing, Howard Mangrum of the Ma ury Cou nty
Sher iff’s Department testified that on March 9, 1997, he was working security for
Maury Regional Hospital when the Appellant was brought in for treatment of a
gunshot wound. When Mr. Mangrum entered the emergency room, he noticed
that the Appellant was clutching a bag in his hand. The Appellant was holding
the bag in a tight grip, and Mr. Mangru m wa s initially unable to pry his fingers
open. Mr. Mangru m testified that at this time, the Appellant wa s “just lying there
motionless.” After Mr. Mangrum removed the bag from th e App ellant’s grip, he
-2- noticed that it appeared to contain crack cocaine. Th e contents of the bag were
later identified as coca ine base .
Kianna Mostella, a friend of the Appellant, testified that she was with the
Appellant when he was shot and that she did no t see a ny dru gs in his possession
at that time. In additio n, the A ppella nt testifie d that h e did not ha ve any drugs in
his posse ssion wh en he w as sho t and that h e was u ncons cious at the time he
was bro ught to the hospital e merge ncy room .
At the revocation hearing, the State argued that the Appellant’s probation
shou ld be revoked because he had entered the State of Tennessee without
permission and because he was found with coca ine in his po ssessio n. In
revoking the Appellant’s probation, the trial court relied on the fact that the
Appellant had been found with co caine in his possession and not on the fact that
he had been present in the State of Tennessee. The trial court stated:
On this pro vision a bout le aving th e state , now th at -- in other words, I would n’t feel comfortable in just ord ering som ebody to leave the state. I wouldn’t, unde r these circum stances wh ere he says he came to help out his grandmother who was sick at the tim e. I wouldn ’t revoke him on that. As far as th e coc aine in his hand , that’s s ufficien t for me . I’m satisfied by the preponderance of the evidence that he possessed this cocaine, crack cocaine, and I’m going to revoke his probation and his sentence, twe lve year sen tence, w ill be served .
POSSESSION OF COCAINE
The Appellant contends that the trial court erred in revoking his probation
because he was unconscious at the time he was found in possession of the
cocaine and because there is no proof that he knowingly or intentionally
-3- possessed cocaine. Specifically, the Appellant contends that abse nt proof o f a
culpa ble menta l state, there is no evide nce tha t his cond uct was criminal and
thus, no basis for revoking his probatio n. The circumstances upon which
probation can be revoked are specified in Tennessee Code Annotated § 40-35-
311(d):
If the trial ju dge s hould find that the Appellant has violated the conditions of probation and suspension by a preponderance of the evidence, the trial judge shall ha ve the r ight by o rder du ly enter ed up on the minutes of the court, to revoke the probation and suspension of sentence and cause the Appellant to com men ce the execu tion of th e judg men t as orig inally entered, or otherw ise in acco rdance with § 40-3 5-310; p rovided, that in case of such revocation of probation and suspen sion, the Appellant has the righ t to app eal.
Tenn. Code Ann. § 40-35-311(d) (1997). The Tennessee Supreme Court has
stated that under this section:
The judgment of the trial court in this regard will not be disturbed on appeal unless it appears that there has been an abuse of discretion. In order for a reviewing court to be warranted in finding an abuse of discretion in a probation revocation case, it must be established that the record contains no substantial evidence to support the conclusion of the trial judg e that a violation of the conditions o f probation has occ urred. T he proo f of a probation violation need not be established beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and intelligent jud gmen t.
State v. Harkins, 811 S.W.2d 79, 82 (T enn. 19 91). Thus , “[t]he revoca tion of a
suspended sente nce is c omm itted to th e sou nd judicial discretion of the trial
judge, and h is decis ion on the m atter w ill not be revers ed on appe al unle ss it
appears that the trial judge has acted arbitrarily in the ma tter.” State v.
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981) (citing Finley v. Sta te,
214 Ten n. 149, 378 S .W.2d 169 (1964 )).
-4- In this case, there was sufficient evidence for the trial court to revoke the
Appe llant’s probation under Tennessee Code Annotated § 40-35-311 for violating
the condition s of prob ation. Inde ed, “[u]nd er this sec tion, compliance with our
state laws is an autom atic condition . . . .” State v. Stub blefield , 953 S.W.2d 223,
225 (Tenn. Crim. A pp. 199 7). There was su fficient eviden ce for the tria l court to
find that the Appellant had violated the conditions of his probation by possessing
cocaine.1 Mr. Mangrum testified that the Appellant had a bag of cocaine in his
hand and that he would not let go of the bag. In fact, Mr. Mangrum testified that
the Appe llant initia lly had such a tight grip on the bag that he w as unable to p ry
the Appellant’s fingers open. Further, Mr. Mangrum never testified that the
Appellant was un conscio us at the time he was holding the bag, only that the
Appellant was “ju st lying there motionless.” It is a reasonable interpretation of
this evidence that the Appellant could not have been gripping the bag of cocaine
so tightly without intentionally holding the bag at some point. While this evidence
may or may not have been strong enough to convict the Appellant of a criminal
offense is not the tes t. “The evid ence n ecessa ry to order a revocation of a
suspended sentence does not require the quantum of proof necessary to convict
one of a crime in the first instanc e.” Bledso e v. State, 215 Tenn. 553, 560, 387
S.W.2d 811, 81 4 (1965 ); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App.
1980).
It is true that both the Appellant and his friend, Ms. Mostella, testified that
the Appellant did no t have a ny dru gs in his possession at the time he was shot
and that the Appellant testified that he was unconscious when he was holding the
1 It is a violation of Tennessee law to knowingly possess a controlled substance. Tenn. Code Ann. § 39-17-418 (1997). Cocaine is a Schedule II controlled substance. Tenn. Code Ann. § 39-17-408(4) (1997).
-5- bag of cocain e. However, the trial court was free to decide how m uch we ight to
give this testimony. Indeed, “[i]n probation revocation hearings, the credibility of
the witnesses is for the determ ination of the trial judge.” State v. W all, 909
S.W.2d 8, 10 (Tenn. Crim. App. 1994) (citing Bledsoe v. State, 387 S.W.2d 811,
814 (Tenn .1965); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App .1980)).
Thus, the trial court was free to disre gard th is testim ony as well as the resulting
inference that someone else placed the cocaine in the Appellant’s hand after he
became unconscious.
Because we find that the re was subs tantial evidence to support the trial
court’s conclusion that the Appellant had violated the conditions of his probation,
we hold that the trial cou rt did no t abus e its disc retion b y revok ing the Appe llant’s
probation.
APPELLANT’S PRESENCE IN THE STATE OF TENNESSEE
The Appellant also contends that the condition of his probation that he
leave the Sta te of T enne ssee during the period of his proba tion was impro per.
Howeve r, because the trial court did not rely on this con dition in revokin g his
probatio n, we ne ed not a ddress this argum ent.
Accordingly, the judgment of the trial court is AFFIRMED.
____________________________________ JERRY L. SMITH, JUDGE
-6- CONCUR:
___________________________________ PAUL G. SUMMERS, JUDGE
___________________________________ DAVID G. HAYES, JUDGE
-7-