# FILED
October 13, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT NASHVILLE JULY SESSION, 1998 STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707- CC-00290 ) Appellee, ) ) ) MAURY COUNTY VS. ) ) HON. JA MES L. WEAT HERFORD JOHNNY DAVI DSON, ) JUDGE ) Appe llant. ) (Direct Ap peal)

FOR THE APPELLANT : FOR THE APPELLEE : JOHN E. HERBI SON JOHN KNOX WALKUP 2016 E ighth Ave nue So uth Attorney Generaland Reporter Nashvill e, TN 37204 TIMOTHY F. BEHAN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 MIKE BOTTOMS Distri ct Attorney General WILLIAM C. BRIGHT Assistant Distri ct Attorney 809 South Main Street Suite 200 Columbia, TN 38401
OPINION FILED ________________________ AFFIRMED JERRY L . SMI TH, J UDGE-2- 

## OPINION
On Au gust 14 , 1996, th e Appe llant, John ny David son, plea ded gu ilty to four counts of sell ing cocaine, one count of sel ling marij uana, and one count of evading arrest. As a result , the Appell ant re ceived an eff ective sentence of twelve years unsupervised p robation with the speci al condit ion that the Appellant
co ntact the judge or his probat ion offi cer before r e-enteri ng the S tate o f Tennessee. On May 9, 1997, th e trialcourt re voked his pro bation . On ap peal, the Appel lant r

aises t he foll owing i ssues for revi ew:
1) whetherthe trial c ourt co rrectly re voked the Ap pellan t’s probation af ter law enforcement officer s found cocaine onthe Appellant’s person; 2) whether the Appel lant’s pr esenc e in the State of Tennessee provi ded suffic ientgrounds for r evocation, even though the t rial cour t did not rely on this fac t in rev oking his pr

obation.
After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.

FACTS

At the probati on r evocation hearing, Howard M angrum of the Ma ury Cou nty Sher iff’s Department test ified that on March 9, 1997, he was working secur ity for Maury Regional Hospital when the Appel lant was brough t in for t reatme nt of a gunshot wound. When Mr. Mangrum entered the emergency room, he noti ced thatthe Appellant

was clutchi ng a bag in his ha nd. The Appe llant was h olding the bag in a tight grip, and Mr. Mangru m wa s in itially 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-3-

noticed thatit appearedto contain crack cocaine. Th e contents of the bag were later identified as coca ine base
.
Kianna Mostella, a f rie nd of the Appell ant, test ified that she was wit h the Appellant

when he was shot and that she did no t see a ny dru gs in his possessi on at thattime. 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 revocat ion hearing, the State ar gued that theAppellant’ s probation shou ld be revoke d because he had entere d the State of Tennesse e wi tho ut permission and because he was found wit h coca ine in his po ssessio n. In revoking the Appellant’s probati on, the trial cour t relie d on the fact

that the Appellant

had been found with co caine in his possessi on and not on the fact that he had been present i n the State of Tennessee. The tri al court stated:

On this pro vision a bout le aving th e state , now th at -- in other words, I would n’t feel c omfortabl e 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 wassick 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 satisf ied by the preponderance of the evidence that he possessed this cocaine, crack cocaine, and I’m going to revoke his probation andhis s entence, twe lve year sen tence, w ill be served
.

POSSESSION OF

COCAINE

The Appellant

contends that

the tri al court erred in rev oking his probat ion because he was unconscious at the time he was found in posses sion of t he cocaine and because there i s no proof th at he knowingl y or intent ion ally-4-

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 w as criminaland thus, no basis for revoking hi s p robatio n. The circumstances upon which probation can be revoked are specifi ed in Tennessee Code Annotated § 40-35- 311(d):

If the trial ju dge s hould find that the Appel lant has vi olated the conditi ons 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 min utes o f the court, to revoke t he probation an d suspension of sentence and cause t he Appellan t 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, t hat i n case of such revocation of pr obation and su spen sio n, the Appell ant 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 t he trialcourt in this regar d will not be dist urbed on appeal unless it appears

that ther

e has been an abuse ofdiscreti on. In order for a reviewing court to be warra n ted in fi nding an abuse of di scretion in a probation revocati on case, it must beestabli shed that t he record contai ns no substanti al evidence to support the conclusion of the trial judg e that a violat ion of the co nditions o f probation has occ urred. T he proo f of a pro bation violat ion need not be established beyond a reasonable dou bt , but it is suf

ficient if it all ows the trial j udge to make a consc ientious 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 ju dicial discreti on 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 t rial j udge has acted arbitrarily in the ma tter.” State v. Williamson , 619 S.W.2 d 145 , 14 6 (Te nn. Cri m. App. 1981) (citing Finley v. Sta te , 214 Ten n. 149, 378 S .W.2d 169 (1964 )).1 It is a violation of Tennessee l aw to knowingly possess a contr olled subst

ance. Tenn. Code Ann. § 39-17-418 (1997) . Cocaine i s a Schedule IIcontrolled substance. Tenn. Code Ann. § 39-17-408( 4) (1997). -5- In this case, there was suffic ient evi dence for the tri al court t

o revoke the Appe llant’s probation unde r Ten nessee Code Annotated § 40-3 5-311 for v iolati ng the condition s of prob ation. Inde ed, “[u]nd er this sec ti on, c ompliance wit h 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 Appel lant had vi olated the conditi ons of his probation by possessing cocaine. 1 Mr. Mangrum testified that the Appellant

had a bag of co caine in his hand and that he woul d not let go of the bag. In fact , Mr. Mangrum test ified that the Appe llant initia lly had such a tight grip on thebag that he w as unable to p ry the Appellant’s fi ngers o pe n. Further , Mr. Mangrum never testified that the Appellant

was un conscio us at th e time he wa s holding t he bag, only t hat the Appellant

was “ju st lyi ng there motionl ess.” It is a reasonabl e interpr etation of this evidence that theAppellant could not have be en gripping the bag of cocai ne so tightly without

intenti onally hol ding the bag at some point. While this evi dence may or may nothave been strong enough to convict the Appellant of a cri minal offense is not the tes t. “The evid ence n ecessa ry to order a revocati on o f a suspended sentence does not require the quantum of proof necessary t o 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 Appell ant and his f riend, Ms. Mostella, testified that the Appellant

did no t have a ny dru gs in his possessi on at the ti me he was shot and thatthe Appellant testified that h e was unconscious when he was hol ding the-6-

bag of cocain e. However, the t rial cour t was free to decide how m uch we ight to give this testimony. I ndeed, “[i ]n probati on revocati on hearings, the credib ilit y of the witness e s is for the determ ination of the trial judge.” State v. W all , 909 S.W.2d 8, 10 (Tenn. Cri m. App. 1994) (ci ting 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 tri al court was free to disre gard th is testim ony as well as the resul ting inference that someone else pl aced the cocaine in t he Appellant’ s hand after he became unconscious.

Because we find that the re was subs tantia l evide nce to support the tri al court’s conclusion that the Appel lant had vi olated the condit ions of hi s 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 Appe llant al so contends that the condit ion of hi s probation that he leave the Sta te of T enne ssee durin g the p eriod of his proba tion was impro per. Howeve r, because the trial court did n ot rely on this con dition in revokin g his probatio n, we ne ed not a ddress this argum ent.

According ly, the j udgment of t he trial cour

t is AFFIRMED
.

____________________________________ JERRY L . SMI TH, J UDGE-7-

CONCUR:

___________________________________ PAUL G. SUMMERS, JUDGE

___________________________________ DAVID G. HAY ES, J UDGE