FILED

October 13, 1998

Cecil W. Crowson

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

JULY SESSION, 1998

STATE OF TENNESSEE, ) C.C.A. NO. 01C01-9707-CC-00290

)

Appellee, )

)

) MAURY COUNTY

VS. )

) HON. JAMES L. WEATHERFORD

JOHNNY DAVIDSON, ) JUDGE

)

Appellant. ) (Direct Appeal)

FOR THE APPELLANT: FOR THE APPELLEE:

JOHN E. HERBISON JOHN KNOX WALKUP

2016 Eighth Avenue South Attorney General and Reporter

Nashville, TN 37204

TIMOTHY F. BEHAN

Assistant Attorney General

425 Fifth Avenue 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
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OPINION

On August 14, 1996, the Appellant, Johnny Davidson, pleaded guilty 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 revoked his probation. On appeal,

the Appellant raises the following issues for review:

1) whether the trial court correctly revoked the Appellant’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 review of the record, we affirm the judgment of the trial court.

FACTS

At the probation revocation hearing,Howard Mangrum of the Maury County

Sheriff’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. Mangrum was initially unable to pry his fingers

open. Mr. Mangrum testified that at this time, the Appellant was “just lying there

motionless.” After Mr. Mangrum removed the bag from the Appellant’s grip, he
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noticed that it appeared to contain crack cocaine. The contents of the bag were

later identified as cocaine base. 

Kianna Mostella, a friend of the Appellant, testified that she was with the

Appellant when he was shot and that she did not see any drugs in his possession

at that time. In addition, the Appellant testified that he did not have any drugs in

his possession when he was shot and that he was unconscious at the time he

was brought to the hospital emergency room . 

At the revocation hearing, the State argued that the Appellant’s probation

should be revoked because he had entered the State of Tennessee without

permission and because he was found with cocaine in his possession. In

revoking the Appellant’s probation, the trial court relied on the fact that the

Appellant had been found with cocaine in his possession and not on the fact that

he had been present in the State of Tennessee. The trial court stated:

On this provision about leaving the state, now that -- in other words, I

wouldn’t feel comfortable in just ordering som ebody to leave the state. I

wouldn’t, under these circumstances where he says he came to help out

his grandmother who was sick at the time. I wouldn’t revoke him on that.

As far as the cocaine in his hand, that’s sufficient 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, twelve

year sentence, will 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
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possessed cocaine. Specifically, the Appellant contends that absent proof of a

culpable mental state, there is no evidence that his conduct was criminal and

thus, no basis for revoking his probation. The circumstances upon which

probation can be revoked are specified in Tennessee Code Annotated § 40-35-

311(d):

If the trial judge should find that the Appellant has violated the conditions

of probation and suspension by a preponderance of the evidence, the trial

judge shall have the right by order duly entered upon the minutes of the

court, to revoke the probation and suspension of sentence and cause the

Appellant to commence the execution of the judgment as originally

entered, or otherwise in accordance with § 40-35-310; provided, that in

case of such revocation of probation and suspension, the Appellant has

the right to appeal.

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 judge that a

violation of the conditions of probation has occurred. The proof 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 judgment.

State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Thus, “[t]he revocation of a

suspended sentence is committed to the sound judicial discretion of the trial

judge, and his decision on the matter will not be reversed on appeal unless it

appears that the trial judge has acted arbitrarily in the matter.” State v.

Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981) (citing Finley v. State,

214 Tenn. 149, 378 S.W.2d 169 (1964)).
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).

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In this case, there was sufficient evidence for the trial court to revoke the

Appellant’s probation under Tennessee Code Annotated § 40-35-311 for violating

the conditions of probation. Indeed, “[u]nder this section, compliance with our

state laws is an automatic condition . . . .” State v. Stubblefield, 953 S.W.2d 223,

225 (Tenn. Crim. App. 1997). There was sufficient evidence for the trial 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 Appellant initially had such a tight grip on the bag that he was unable to pry

the Appellant’s fingers open. Further, Mr. Mangrum never testified that the

Appellant was unconscious at the time he was holding the bag, only that the

Appellant was “just 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 test. “The evidence necessary 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 instance.” Bledsoe v. State, 215 Tenn. 553, 560, 387

S.W.2d 811, 814 (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 not have any drugs in his possession at the time he was shot

and that the Appellant testified that he was unconscious when he was holding the
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bag of cocaine. However, the trial court was free to decide how much weight to

give this testimony. Indeed, “[i]n probation revocation hearings, the credibility of

the witnesses is for the determination of the trial judge.” State v. Wall, 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 disregard this testimony 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 there was substantial evidence to support the trial

court’s conclusion that the Appellant had violated the conditions of his probation,

we hold that the trial court did not abuse its discretion by revoking the Appellant’s

probation.

APPELLANT’S PRESENCE IN THE STATE OF TENNESSEE

The Appellant also contends that the condition of his probation that he

leave the State of Tennessee during the period of his probation was improper.

However, because the trial court did not rely on this condition in revoking his

probation, we need not address this argum ent.

Accordingly, the judgment of the trial court is AFFIRMED.

____________________________________

JERRY L. SMITH, JUDGE
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CONCUR:

___________________________________

PAUL G. SUMMERS, JUDGE

___________________________________

DAVID G. HAYES, JUDGE