State v. Robinson

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED MAY 1998 SESSION June 3, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk STATE OF TENNESSEE, ) ) NO. 03C01-9709-CR-00405 Appellee, ) ) KNOX COUNTY VS. ) ) HON. RICHARD R. ) BAUMGARTNER, JUDGE AUGUSTA THOMAS ROBINSON, ) ) Appellant. ) (Probation Revocation)

FOR THE APPELLANT: FOR THE APPELLEE:

MARK E. STEPHENS JOHN KNOX WALKUP District Public Defender Attorney General and Reporter

PAULA R. VOSS TODD R. KELLEY JAMIE NILAND Assistant Attorney General Assistant Public Defenders Cordell Hull Building, 2nd Floor 1209 Euclid Avenue 425 Fifth Avenue North Knoxville, TN 37921 Nashville, TN 37243-0493

RANDALL E. NICHOLS District Attorney General

MARSHA SELECMAN Assistant District Attorney General 400 Main Avenue P.O. Box 1468 Knoxville, TN 37901-1468

OPINION FILED:

AFFIRMED

JOE G. RILEY, JUDGE OPINION

The defendant, Augusta Thomas Robinson, appeals the order of the Knox

County Criminal Court revoking his probation. On appeal, he claims (1) there

was insufficient evidence to support the trial court's ruling, and (2) he was denied

the minimum level of due process required in a probation revocation hearing.

The judgment of the trial court is affirmed.

FACTS

The defendant was initially convicted of criminal impersonation and

sentenced to six (6) months probation. Subsequently, the defendant was

arrested on two (2) counts of burglary. A probation violation warrant was issued

because of the arrest and the failure to report the charges.

The state presented the testimony of one of the automobile burglary

victims, Paul Russell, at the revocation hearing. Russell testified he observed

the defendant steal tools out of a toolbox in the back of Russell's truck. Russell

had previously identified the defendant in a photo line-up as the person who

stole his tools.

The defendant testified in his own behalf. He stated he had no

involvement in the offense.

The trial court found sufficient proof had been presented to establish the

defendant committed the offense. The trial court concluded, therefore, that the

defendant violated his probation and ordered his sentence for criminal

impersonation to be served in custody.

2 SUFFICIENCY OF THE EVIDENCE

A trial court may revoke probation and order the imposition of the original

sentence upon a finding by a preponderance of the evidence that the person has

violated a condition of probation. Tenn. Code Ann. § 40-35-311(d). 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). Revocation of

probation is subject to an abuse of discretion standard of review, rather than a

de novo standard. State v. Harkins, 811 S.W.2d 79 (Tenn. 1991). Discretion is

abused only if the record contains no substantial evidence to support the

conclusion of the trial court that a violation of probation has occurred. Id.; State

v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation

need not be established beyond a reasonable doubt, and the evidence need only

show that the trial judge exercised a conscientious and intelligent judgment,

rather than acting arbitrarily. Gregory, 946 S.W.2d at 832; State v. Leach, 914

S.W.2d 104, 106 (Tenn. Crim. App. 1995).

The evidence fully supports the trial court's revocation order. The state

presented testimony that the defendant committed a criminal offense in violation

of the terms of his probation. The defendant denied any involvement. The trial

court was in a position to judge the appearance, demeanor and credibility of the

witnesses. There was certainly substantial evidence to support the trial court’s

findings.

This issue is without merit.

DUE PROCESS

The defendant contends that his due process rights were violated

because the state did not disclose to him all of the evidence it had regarding his

3 pending burglary charges. He argues this lack of disclosure prevented him from

presenting an adequate defense at the revocation hearing.

Probation revocation proceedings are subject to constitutionally-mandated

procedural due process standards. See Gagnon v. Scarpelli, 411 U.S. 778, 93

S.Ct. 1756, 36 L.Ed.2d 656 (1973)(adopting the procedural requirements for

parole revocation set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593,

33 L.Ed.2d 484 (1972)). Disclosure of the nature of the evidence against the

probationer is among these standards. Morrissey v. Brewer, 408 U.S. at 489, 92

S.Ct. at 2604, 33 L.Ed.2d at 499. Nothing in this record indicates the state failed

to disclose exculpatory evidence to the defendant. Nor is there a showing that

the defendant requested the right to examine certain evidence and was denied

this right by the state. There is no requirement that the state introduce all proof

at its disposal. The state may properly introduce only enough evidence that it

believes will satisfy its burden of proof, provided it does not withhold exculpatory

evidence. The defendant was given prior notice of the revocation hearing where

he was allowed counsel, the right to cross-examine witnesses against him, call

witnesses on his own, and testify in his own defense. Due process was satisfied.

CONCLUSION

The evidence adduced at the revocation hearing is sufficient to support

the trial court's conclusion that the defendant violated his probation. Therefore,

4 _________________________ JOE G. RILEY, JUDGE

CONCUR:

_________________________ JOSEPH M. TIPTON, JUDGE

________________________ CURWOOD WITT, JUDGE