### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs A ugust 5, 2003
STATE OF TENN ESSEE v. CHARLES LAWUARY Direct Appeal from the Circuit Court for Madison County

No. 01-488 Roger Page, Judge

No. W2002-02739-CCA-R3-CD - Filed October 17, 2003

Defend ant, Ch ar le s La wu ar y, appeals from thetrial cou rt's or der rev oking De

fendant 's commu

nity corrections sentence and requiring him to serve the se ntence in incarceration. Defendant argues that the trial court

abused its discretion in revoking the community corrections sentence. After a review of the record, t

he brief s of the parties, and the applicable law, we af firm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
T HO MAS T. W OODA LL , J., delivered the opinion of the court, in which N ORMA M C G EE O GLE an d R OBER T W. W EDEMEYER , JJ., joined. Michael D. Rasnake, Jackson, Tennessee, for the appe llant, Charles Lawuary
Paul G. Summers , Attorney General and Reporter; J. Ross Dy er, Assistant Attorney Ge neral; James G. Woodall, District Attorney Gener al; James W. Thompson, Assistant District Attorney Genera l, for the appellee, the State of Tennessee.
OPINION
On January 30, 2002, Defe ndant pled guilty in the Madison County Circuit Court to three misdemeanor

offenses: (1) attempted leavi ng the s cene of an accident with injuries; (2) driving without a valid license; and (3) possession of marijuana. Defendant receiv ed conc urrent s entence s, resulting in a total e

ffectiv e sentenc e of 11 months and 29 days in the c ounty jail. The trial court suspended Defendant’s sentences and order ed the sentences to be serv ed in the com munity corrections program. On

May 15, 2002, a community corrections violation warrant was issued. The following ground s for revocation were a lleged in the war

rant: (1) Defend ant faile d to repor t n e w arrests in Gibson County on March 7, 2002; and (2) Defendant was c onvicted on March 13, 2002, of “new offenses” of resisting a rrest, evading arrest, and lea ving the scene of

an acci dent in

Gibson County.-2-

The State’s proof at the revocation hearing on September 12-13, 2002, wassparse. The State didnot present evidence that would normally be introduced in a hearing conce rning the allegations containedin a violation warra nt similar to t he one a t issue in th

is case. Despite a

one-day recess during the hearing, the State was unable to submit certified copie s of the judg ments of conviction in Gibson County. Also, there was no testimony or documentary e

vidence of the special conditions and rules of Defendant’s community corrections sentence. Following the hearing, the trial court ruled that it wa s not revo king the community corrections sentence based upon Defendant’s alleged fa

ilure to report his arrests of March 7, 2002. The trial court did revoke the community corre ctions sentence based upon Defendant’s convic tions for offenses committed while on community c o rrectio ns, and because of Defendant’s “ conduct unbecoming good citizenship.” A defenda nt is entitled to notice

of the ba ses upon w

hich the St

ate seeks to revoke probation. Gagnon v. Scarpell i , 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973 ); State v. S

tubblefie ld , 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997); Tenn. Code Ann. § 40-35-311 (1997). The requirement of notice applies in a community

corrections revocation procee dings just as it does in probation revocations. Bentley v. State , 938 S.W.2d 706, 714 (Tenn. Crim. App. 1996) . Becaus e there is no evide nce in the rec ord th at “con duct u nbeco ming g oo d citizenship” wa s a vi ol at io n o f a ny cond ition of hiscommunity corrections sente

nce, an d becau se this alleged ground was not cha rged in the violation warrant, we can r eadily dispense with that issue and conclude

that it is no t a prope

r basis t o revoke Defendant’s community corrections sentence. Therefore, we are left to resolve whether De fendant’s community corrections sentence was prope rly revoked because of his convictions for offe nses committed w hile on community corrections

. D efendant’s aunt, Reb ecca Jone s, testifi ed that De fendant contact ed her a fter his a rrest in Gibso n Co un ty. Defendant was still in the Gibson County jail, and he told Ms. Jones his situation. He asked her to contact

his community corrections supervisor, Carla Rogers, and inform Ms. Rogers that he had “picked up a charge.”Ms. Jones testified that she made three unsuccessful attempts to contact Ms. Rogers by phone

. Fi na ll y, on April 1, 2002, Ms. Jones went to Ms. Rogers’ office. Upon disc overing that Ms. Rogers was not pr

esent, Ms . Jones lef

t a note to Ms. Rogers on a

“client contact form.” This form was admitted a s an exhibit. Ms. Jones ac knowledg ed that she wrote the information in the “commen ts” section o f the re

port, and testified that she wrote what the Defendant had told her. The comments section s tates “[D efenda nt] is presently in Gibson County jail for 90 days. He

was riding withsomeone w

ho had a [si c] acc ident. Charges are 30 day s leaving the scene, 30 day s resisting arrest, and 30 day s evading arrest.”
Officer Bruce Dodd of the Humbold

t police d epartme nt testif ied concerning Defenda

nt’s arrest on March 7, 2002. Office r Dodd wa s not spec ifically asked, n or did he o ffer, te stimony as to the specific charges place d against Defendant on March 7, 2002. Mor eover, the officer did not testify that these charges were filed in Gibson County. We ca n take judicial notice, however, that Humboldt is entirely within Gibson County . Tenn. R. Evid. 2 01(b ). Officer Dodd stated that Defendant

and anoth

er male w ere stop

ped while walking on the Highway

45 bypass for investig ation-3-

of leaving a wrecked

car nearby . Dodd also testified that Defendant broke away from another officer withDodd when Defendant was placed into custod y, a nd th at Defe

ndant and his compa

nion both ran away into a ne arby swa mp, whe re they we

re later apprehended. These f acts support a strong inferencethat

Defendant was arrested in Gibson County on March 7, 2002 for the offenses of leaving the scene of an accident, resisting a rrest, and evading arrest. The testimony of M s. Jones of what Defe ndant tol d her regarding his situation also supports a strong inference that Defendant was convictedin Gibson County on March 13, 2002, and was serving a 90-day se

ntence as a result of the March 7, 2002 charges.
Defendant

complains on appeal that the trial court relied upon unreliable hearsay in revoking the community

corrections sente

nce. The testimony

of Ms. Jones was not ina dmissib le hearsay because it was an a

dmission by

Defend ant. Ten

n. R. Evid. 8 03(1.2). Defend ant did not object to the testimony of Ms. Rogers that De fendant was arrested

in Gibson County on March 7, 2002. The testimonyof Offic er Dodd w as based entirely upon what

Dodd personally obser

ved at the time of Defendant’s arrest on March 7, 2002, a nd was therefore not hearsay

. Our supreme court has held that in deciding whether to r evoke a community c orrections sentence, courts sh ould

apply the same principle s utilized in

probatio n revoca

tions. State v. Harkins , 811 S.W.2d 79 (Tenn. 1991). A trial court may r evoke a sentence of probation upon a finding by a preponderance of the evidence that the person has violated a condition of probation. Tenn. Code Ann. § 40-35-311(e) (Supp. 2002). The decision to rev oke prob ati on rests within the sound discretion of the trial court. State v. M itchell , 810 S.W.2d 733, 735 (Tenn. Cri m. App. 1991). Revocation of proba

tion and a community

corrections sente

nce is subject to

an abuse of discretion standardof review, rather than a de novo standard. Harkins , 811 S.W.2d at 82. Discretion is abused only if th e record cont ains no sub stantial e vidence to support

the trial court’s conclusi on that a violation of probation or community cor rection sentence has occurred. Id .; Stat e v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation need not be established bey ond a reasona ble doubt, and the evidence need only show that the trial judge exercised a conscientious and intelli gent

judgment, and did not act arbitrarily

. Gregory , 946 S.W.2d a t 832; State v. Le ach , 91 4 S.W.2d 104, 106 (Tenn. Crim. App. 1995). If the trial c ourt finds that the defendant has violated the conditions of probation, the court may “commence t

he e xecution of

the judg ment as or

iginally entered . . . .” Tenn. Code Ann. § 40-35-311(e) ( Supp. 2002).
While the State

did not off

er the str ongest e vidence possible in

support of the revocation of Defendant’s community corrections sentence, the record reflects that the State introduced evide nce, althoug h circum stantial, that Defendant was convicted for “ne w offenses” which were committed while he was serving a community corrections sentence. Alth ough the State did not submit any documentation of the rules and conditions of Defendan t’s supervised community corr ections sentence, implicit in any sentence involving r elease in the community is the r equir ement tha

t a defendant not commit new crimes. Defendant is not entitled to relief in this appea l.-4- CONCLUSION For the reasons stated herein, the judg ment of the trial court is affirmed.

___________________________________ THOMAS T. WOODALL , JUDGE