### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs Jun e 28, 200 5
STA TE OF TEN NES SEE V 

### . JAM ES ER SK IN M C 

### CU LLOU GH

Direc t Appeal from the Cr im inal Cou rt for Ham ilton Coun ty Nos. 242224, 242320 Rebec ca J. Ster n, Jud ge

No. E2004-02669-CC A-R3- CD - June 29, 2005

The De fenda nt, J ames Er skin McCullough, pled g uiltyto various offe nses, and, while h e was on probation fo r t h ese convictions, a probation violation report was filed, stating that the D efe ndant failed t o r e p o r t t o h is p r o b a ti o n o f f ic e r a n d w a s arr e s te d f

o r th e f t. A f te r a h e ar in g , th e tria l c o u rt
re vo ke d th e De fe nd a nt’ s p ro ba tio n, a ndit o rd e re d th a t th e De fe nd a nt s e rv e the re ma ind e r of his sentenc e in prison. On appe al, the De fenda nt contends that the evidenc e is insufficient to revoke the Def endant’ s probation, and, ther efor e, the tria l court abuse d its discretion by revoking his probation. After thoroug hly

revie wing the re cord a nd the applica ble authorities, we aff

irm t h e trial court’ s judgme nt. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which J A M ES C UR WO OD W I TT , J R

. and A L AN E. G L EN N , J J ., joined.

Arde na J. Garth and Donna Robinson Mi ller, Chattanoog a, Te nnessee , for t he Appe llant, J ames Erskin McCullough.

Pa ul G. Sum me rs , Atto rn e y Ge ne ra l a ndRe po rt e r; Da vidH. F ind le y , A ssi sta nt A tto rn e y Ge ne ra l; Wil liam H. Cox , I I I , District Attorney Gene ral; and B ates W. Bry an, Jr., Assist ant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.
OP IN ION I. F acts

On J une 19, 2003, the Def endant enter ed g uilty pleas to two c ounts of forg ery , one count of theft of pr operty

over $500.00, one count of theft of property over $1000.00, one count of thef t of property under $500.00, one count of identity theft, one count of criminal impersonation, and one count of fa ilure to appe ar. The trial court sentenc ed the Def endant to an eff

ective sentenc e of nine y ear s, as a Rang e I I I

offe nder, to be serve d on intensive probation. On June 21, 2004, a probation-2-

violation report wa s filed, alleg ing that the Def endant f ailed to re port to his probation office r and tha t he wa s a rr e ste d f or the ft

.

The following evidenc e wa s prese nted at the Def endant’ s probation revoc ation hearing: De e Massey , the Def

endant’ s Tennesse e probation o ff i ce r, t estified that, af

ter the D efe ndant was convicted in Te nnessee , he we nt to Georg ia bec ause h e had another c ase pe nding the re. Ma ssey te sti fi e d th a t he r o ff

ic e mon ito re d th e De fe nd a nt’ s ca se a ndhis inc arc e ratio n ti me wh ile he wa s in Geor g ia. She stated that she se nt the Def endant letter s, while he was in Georg ia, notify ing him of his responsibilityto report to the State of Tenne ssee u p o n h i s re lease from custody in Georg ia. Massey testified that the De fenda nt did not report to her or to her off

ice u p o n his relea se fr om cu s tody in Georg ia. She said that a note in the Def endant’ s file indicated that the Def endant’ s probation off

icer from Ge org ia contac ted her office . That Ge org i a o ff i ce r l eft a messag e that the Def endant wa s “re porting ” in Geor g ia and wa s g oing to live at a halfw ay house in Chattanoog a.

Ma sse y state d th a t it

wa s h e r o ff

ic e ’s un de rs ta nd ing that th e De fe nd a nt w ou ld r e turn to Ten n e s s e e f

o r “ d u a l- s u p e r v is io n , ” w h e r e h e w o u ldb e a p r o b a ti o n e r

f r o m T e n n e s s e e a n d b e “an interstate c ompact” pr obationer f rom Geor g ia. She stated that the D efen d an t d i d not report f or supervision in Tennesse e. Massey testified that an of

fice r conta cted the ha lfway house whe re the Def endant was supposed to be living, but he was not there , and Masse y ’s offic e discove red tha t the Def endant had been arr ested on a char g e of theft under $500.00. She stated that she f iled a probation violation, and the trial court issued a capias for the Defenda nt. She testified t hat s he wa s unawa re that the Defenda nt had two theft convic tions after she filed the probation violation form because she transfe rre d to a diffe rent off ice. She conclude d that the Def endant wa s supposed to be on intensive probation, and he never

reported to her of

fice afte r he w as re lease d from Ge org ia.

Th e De fe n d an t testified that, afte r his rele ase f rom the Ge org ia Dete ntion Center, he wa s transfe rre d to a fac ility in Rome, Geor g ia, so that he could pay his court costs and f

ines. He sa id that he wa s th en t ra n s fe rr ed to a wor k rele ase pr og ram in White County , Geor g ia. The D efe ndant testified that he was then transfe rre d to a diversion prog ram in Floy d County , Geor g ia, wher e he w as require d to g et a job to pay all court costs and fines befor e he was release d. He sa id that he was the n transfe rre d to Ringg old, Georg ia, wher e he was required to prove that he had satisfied his costs and fines. He stated that, at that point , he believed t hat “everything was complete” beca use he showe d
a re ceipt for

all of his costs and fine s to the State of Geor g ia. The D efe ndant testified that he the n went to Chattanoog a, Te nnessee , and he learned that his fathe r had been murde red. H e stated tha t he app lie d to liv e a t a

ha lf way ho us e , b ut the He ph zibah M ini stry didno t ha ve sp a c e fo r h im.

The De fenda nt testified that he beg an using drug s ag ain, he pled g uiltyto two theft cha rg es in Gener al Sessions Court, and he wa s, at the time of the he aring , about halfw ay throug h serving both of those sentenc es. He testified that, when he pled g uiltyto t h e t h ef t ch arg es, he ma de
ar ra n gem en t s t o b e a d m i t t ed i n t o t h e V A ho s p i t al

. He s ai d t h at th e Ge n er al S es s i o n s C o u rt J u d ge a g re e d to su sp e ndthe la st m on th of his se nte nc e to al low him to g o to tr e a tme nt at th e VA ho sp ita l. The De fenda nt testified that, while incar cer ated, he was a cce pted into a drug thera py prog ram, a nd,-3-

afte r that prog ram, he would still be able to be admitt ed to the VA hospital on his VA benef its. He state d th a t he ha s e mpl oy ment arran ged, upo n h is r e le a se , if g rante d p ro batio n, a s a

c oo k at a fa st food re staurant. The Def

endant testified that he is veter an from the Vietnam War, a nd he admitted t h at h e h as a d ru g p ro b l em fo r wh i ch h e h as n o t re ce i v ed tre at m en t , b u t h e s t at ed t h at h e u s ed d ru gs to deal with his post -t ra u m at i c s t ress disorde r. He said that he a lso suffer s from other me dical problems. The D efe ndant testified that he is the onl y family member to support his children, and he reque sted that the court place him on probation.

On cr oss-examination, the Defe n d an t a d mi tt e d that he neve r re ported for

intensive probation. He state d that, when he was rele ased, he looked for trea tment prog rams. He admitted that he wa s convicted of

theft cha rg es. He said that he did no t re ceive drug trea tment or alcohol c ounseling while in Geor g ia. The D efe ndant stated that he has not rec eived c ounseling befor e, and he said he will be able to g et treatment that he nee ds from the VA hospital.

After hearing the evidenc e, the tria l court stated:
[Th e De fe nd a nt] h a s a

lon g re c or d. He a lso ha s v iol a te d p ro bati on by faili ng to report to [ the] probation of fice , being convicted of theft this Aug ust and by his own
a dmi ssi on g e tti ng c a ug ht u p in dr ug s. Th e re fo re , h is p ro batio n is re vo ke d, his sentenc es ar e orde red into execution with cre dit for time serve d.

The De fenda nt appea ls the trial court’s or der, c ontending that the trial court erre d when it re voked his probation.

II. Ana lys is

T h e Defendant a

rg ues that the trial c ourt abused its discre tion in revoking his probation beca use insufficie nt evidence was pre sented that he violated his pr obation, and he a rg ues that there is no evidence that he rec eived notification from his pr obation office r of his responsibilityto report in Tennesse e. The State counter s that the evidenc e pre sented wa s suffici ent to war rant the r evocation of the De fenda nt’s probation.

When a trial court determines by a pre pondera nce of

the evidenc e that a p ro bationer ha s violated the conditions of his or her probation, the trial court has the authority to revoke probation. Tenn. Code Ann. § 40- 35-311(e ) (2003) . The de cision to revoke probation i s in the sound discretion of the trial judge

. State v. Mitchell, 810 S.W .2d 733, 735 (Tenn. Crim. App. 1991) . The judg ment of the trial c ourt to revoke probation will be upheld on a ppeal unless ther e has been a n abuse of discretion. State v. Ha

rkins, 811 S.W .2d 79, 82 (Tenn. 1991)

. To find an a buse of discr etion in a probation revocation ca se, the re cord must be void of a ny substantial evidence that would support the trial court’s decision that a violation of the c onditions of probation occur red. I d.; State v. G rea

r,-4-

568 S.W .2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W .2d 395, 398 (Tenn. Crim. App. 1980). Proof of a

probation violation is sufficient if it allows the trial court to make a c onscientious and intelligent judg ment. State v. Milton, 673 S .W.2d 555, 557 (Tenn. Crim. App. 1984).

We conclude that the trial court did not abuse its discretion when i t fo u nd that sufficie nt evidenc e wa s prese nted that the De fenda nt violated his probation. The De fenda nt’s pr o b ati o no f fice r notified t h e Defenda nt severa l times of his responsibilit y to report to Te nnessee for intensive probation. The D efe ndant did not state that he did not know or unde rstand this responsibility , and he admitted that he ne ver r eporte d for intensive pr obation. I n addition, the Def endant admitted that he wa s a rr e ste d a ndc on vic te d fo r tw o the ft c ha rg e s a ft e r he wa s r e le a se d f ro m hi s o bli g a tio ns wi th the State of Ge org ia. Thus, we c onclude that the trial co u rt d i d n ot abuse its discretion by determining that the State prove d, by a pre pondera nce of

the evidenc e, that the De fenda nt violated his probation. This issue is without merit.

III. Conclusi on

B a se d o n th e fo re g oin g re a so nin g a nda uth ority , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

.

________________________________ ROBERT W. WEDEMEYER, J UDGE