### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE August 2000 Session

STATE OF TENNESSEE v. HELEN I. CUMBERBATCH
Appeal from the Criminal Court for Hamilton County No. 21683 Rebecca J. Stern, Judge

No. E2000-00047-CCA-R3-CD September 8, 2000

The Defendant appe

als as of right fro

m the trial court's r evocation of her community corrections sentence. She argues that

the trial court erred in revoking her community corrections sentence based

on unreliable, undocumented hearsay evidence that she had failed a drug screen. The State asserts that the Defendant ha

s waived appella

te review of the a

dmis sion of the hearsay evid ence because she failed to object at the hearing. We hold that the trial judge prop erly c onsidered the hearsay evidence, and she did not abus e h er discretion in revoking community corrections because the evidence was sufficient to establish by a preponderance of the eviden ce t hat the Defendant had violated the conditions of c ommunity correcti

ons by using cocain

e. Accordingly, w

e affirm t h e judgment of the trial court revoking the Defendant's community corrections sentence.
Tenn. R. App. 3 Appeal as of Right; Judgment o

f the Criminal Cour

t Affirmed.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined.

Ardena J. Garth, District

Public Defender

; Donna Robinso

n Mil ler, Assistant Dist

rict Public Defender, for the appellant, Helen I. Cumberbatch.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney Genera

l; Bill Cox; District Attorney

General, and Yo

landa D. Mitchell,

Assistant District A

ttorney Genera

l, for the appellee, State of Tennessee.

OPINION

On September 29, 1998 , the Defendant, Helen I. Cumberbatch, pleaded guilty in Hamilton County to theft in an amount over $1,000.00. She received a four-ye a r sentence to be served on probation, and she was orde red to pay restitu

tion and to

submit to random drug screens. As a result of failed drug screens, the Defendant's probation was revoked on June 14, 1999, and she was ordered to serve her sente

nce in the Hamilton

County Community Corre ctions Program. Sh

e rem ained subject to random drug screens. O n October 5, 1 999, the community corrections program filed a "Request for Capias," alleging that the Defendant had failed a drug screen on September 30, 1999.-2-

The community corrections officer, Brayto n Floyd, requested that the court either incarcerate the Defendant

for thi rty to sixty days and then require drug treatment upon release or remove the Defendant from the community corrections program.

On December 13, 1999, a hearing w as held to determine whethe

r the Defendant

's community corrections sentence should be revoked. T he only witness was Brayton Floyd, the Defendant's community

corrections officer. He testified that the program administered four random drug screens to the Defendant

between June 14, 1999 and September 30, 1999, and all four screens were returned negative for drug use. However, on September 30, 1999, the program again administered a dru g screen, which "was returned positive for cocaine use." This testimony was the only evidence of any drug use by the Defendant. The Defendant did not object to the testimony or challenge this evidence in any way. Mr. Floyd further testified that the Defendant had not bee n charged with any new of fenses, that she had not violated curfew, that she was paying restitution, and that she had maintained full-time employment. The State then requested that the court revoke the Defendant's community

corrections sentence and require her to serve her sentence in c

onfinement. The d

efense attorney stated that the De fendant "obviously

has a drug problem" and requested a period of shock incarceration

and then release a gain into t he community corrections program. After hearing the evidence, the trial court found that the Defendant had violate d the conditions of h er community corrections sentence and revoked that sentence. The Defendant now argues that the revocation was
error.

The trial court has the discretion to revoke a community corrections sentence upon finding by a preponderance of the evidence that the defendant has violated the conditions of the agreement; the trial court may then o rder the defendant to serve his or her sentence in confinement. State v. Harkins , 811 S .W.2d 79, 82-8 3 (Tenn. 1991). However, before a trial court may revoke a community

corrections sen

tence, the reco

rd must contain

sufficient evidence

to permit the trial court to make an in

telligent and conscientious decision. Id. When revoking a community corrections sentence, the trial court mus t place its findings

of fact and the r

easons for the re

vocation on th

e record. See Gagnon v. Scarpe lli , 411 U.S. 778, 786 (1973).

The Tennessee Supreme Court has held that an abuse of discretion standard of appellat e review should be used to co nsider an appea

l from the revoca

tio n of a community corrections sentence. Harkins , 811 S.W.2d at 82-8 3. In order for a reviewing court

to be warranted in

finding

an abuse of discret

ion in a probation revocation case, it must be established that the record contains

no substantial evidence to support the conclusionof the trial judge that the defendant violated the terms of the community

corrections program. Id. The proof of a violation of community corrections need not be established

beyond a reasona

ble doubt, and it is sufficient if it allows the trial judge to make a conscientious and intelligent decision. Id. ; Sta te v. Milton , 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).

If the evidence at the revocation p roceed ing is insufficient to establish that a violation occurred, the trial court should dismiss t he proceeding. C

onversely, if the

evidence is suff

icient, the trial court may, within its discretionary authority, revoke the sentenc e and requ ire the accused to serve the sentence in confinement. See Tenn. Code Ann. § 40-36-106(e)(3).-3-

We conclude that the evidence was sufficient to

establish by a preponderance of the evidence that the Defendant

was in violation of the co

nditions of her com

munity correction

s sentence due to drug use. Mr. Floyd testif ied that the Defe

ndant had faile

d a dru g screen by testing positive for cocaine use, and the Defendant did not object or in any way challenge that testimony. In fact, the Defendant's attorney stated to the court, "Ms. Cum

berbatch obvious

ly has a drug problem," thereby apparently

conceding that the Defendant had used drugs. We cannot conclude from this record that the revocation of community corrections was an abuse of discretion.

The Defendant, however, argues that the trial court erred by relying on the hearsay testimony of Mr. Floyd that she had failed a drug screen. She relies on State v. Wade , 863 S.W.2d 406 (Tenn. 1993), in which the admission of a drug screen report was challenged as a violation of the right to confront and cross-examine witnesses. In Wade , a drug screen report was entered into evidence over the defendant's objection. Id. at 407. The State di d not call the laboratory technician who performed the test and prepared the

report. Id. Both the defendant and his wife testified that the defendant had not used illegal drugs

but that he had bee

n taking Advil,

which could have caused false results. Id. Relying solely on the drug screen report, the trial court revoked the defendant's probation. Id. The supre me court found that the admission of the report, which was clearly hearsay, violated the defendant's due process righ ts because there was no evidence that it was reliable and because the trial court did not find "good cause" to justify the failure to call the technician and have him or her available for cross-examination. Id. at 409-10. The court also noted that the validity of the report
was put at issue by the testimony of the defendant and his wife that he h ad not used illegal

drugs. Id. at 409. It then held that "the State is not entitled to revoke probation ba se d on an unidentified laborato ry t est admitted into ev

idence without a f

inding of good caus

e and proof of the

reliability of the test report." Id. at 410; see also State v. Gregory , 946 S .W.2d 829, 831 (Tenn. Crim. App. 1997); State v. Anthen Lee Parker , No. 02C01-9111-CC-00 2 45, 1994 WL 34632, at * 1 (Tenn. Crim. App., Jackson, Feb. 9, 1994).

Had the Defendant

challenged the results of the drug screen at the re vocation hearing , this issue would be presented in a different light. However, we find Wade to be inapplicable to the facts of this case. Here, unlike in W ade , t he Defendant never objected to the hearsay testimony of Mr. Floyd. Here, unlike in Wade , the Defendant neve r put the validity

of Mr. Floyd's testimony at issue. Indeed, the Defendant conceded through her attorney that she had used

illegal drugs. As a general rule, "[w]hen no objec

tion to [hearsay] testimony is interpo sed, it may proper ly be considered

and given its natural probative effect as if it were in law admis sible." State v. Harrington , 627 S.W.2d 345, 348 (Tenn. 1981). Rule 36(a) of the Tennessee Rules o f Appellate Proc

edure likewise p

rovides: "Nothing in this rule shall be construed as requiring relief to be granted to a party responsible for an

error or who failed

to take whatever action was reasonably available to prevent or nullify the harmful effect of an error." Failur

e to make a contem

poraneous objec

tion waives consid

eration by this

Court of the issue on appeal. See id. ; Statev. Killebrew , 760, S.W.2d 228, 235 (Tenn. Crim. App. 1988). Thus, the Defendant cannot now com plai n of the admissibility and reliability of the hearsay testimony of Mr. Floyd when she did not challenge it below and when she conceded that she had a problemwith drugs. The trial court properly considered the testimony of Mr. Floyd as substantive evidence that the Defendant failed a drug screen.-4-

Accordingly, the judg ment of th e trial court revoking the Defendant's community corrections sentence is affirmed.

___________________________________ DAVID H. WELLES, JUDGE