IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 16, 2016 at Knoxville

STATE OF TENNESSEE v. DARRELL THOMAS GOOCH

Appeal from the Circuit Court for Dyer County

Nos. C07-211A & 11-CR-420 R. Lee Moore, Jr., Judge

No. W2016-00117-CCA-R3-CD - Filed September 30, 2016

The Defendant, Darrell Thomas Gooch, appeals as of right from the Dyer County Circuit 

Court‟s revocation of his probation and reinstatement of his effective ten-year sentence. 

The Defendant contends (1) that the trial court abused its discretion by revoking his 

probation because it relied on an additional probation violation introduced at the hearing 

that was not included in the violation warrant; (2) that the trial court ignored factors that 

mitigated his presence at the rape victim‟s apartment complex; and (3) that the four 

curfew violations, alone, were insufficient to revoke probation. Following our review, 

we affirm the trial court‟s revocation of the Defendant‟s probationary sentence and order 

of confinement. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD 

WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

James E. Lanier, District Public Defender; and H. Tod Taylor, Assistant District Public 

Defender, for the appellant, Darrell Thomas Gooch.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant 

Attorney General; C. Phillip Bivens, District Attorney General; and Karen Burns, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND
2

On December 11, 2007, the Defendant pled guilty in case number C07-211A to 

sale 0.5 grams or more of cocaine, a Class B felony, for which he received an eight-year 

sentence, with one year to be served in incarceration and the remainder on supervised 

probation. See Tenn. Code Ann. § 39-17-417. This sentence was run consecutively with 

“[a]ll prior sentences and/or parole revocations in the [S]tate of Illinois.” Then, on May 

30, 2014, in case number 11-CR-420, the Defendant pled guilty to attempted rape, a 

Class C felony, for which he received a sentence of ten years to be served on probation.

1

 

See Tenn. Code Ann. §§ 39-12-101, -13-503. The ten-year sentence was to be served 

concurrently with the prior eight-year sentence in case number C07-211A.

On September 1, 2015, the Defendant‟s probation officer filed a probation 

violation report listing both case numbers.

2

The probation officer wrote that the 

Defendant violated Rule 6 of his probation when he failed to obey curfew on four 

different dates. The officer further alleged that the Defendant, a registered sex offender,3

violated Rule 12 of his probation in three ways: (1) two pornographic videos were found 

on the Defendant‟s phone; (2) the Defendant used his phone for a “sexually oriented 

purpose”; and (3) on August 9, 2015, the Defendant went to the last known residence of 

his victim.

At the hearing, the Defendant‟s probation officer, Charles Smith, testified that the 

Defendant had been out past curfew on four different occasions—July 26, 2014; February 

14, 2015; February 28, 2015; and March 7, 2015. Due to the Defendant‟s status as a 

violent sexual offender, he was required to wear a Global Positioning System (“GPS”) 

tracking device. Ofc. Smith confirmed that the Defendant was outfitted with such a 

device at the time he committed the attempted rape in case number 11-CR-420.

Ofc. Smith further testified that the Defendant was forbidden from visiting 600 

Eaglewood Drive (“Eaglewood Apartments”) as a condition of his probation because the 

rape victim lived there. On August 9, 2015, the Defendant‟s GPS device indicated he 

was at that location, and the Defendant had not obtained prior authorization from Ofc. 

Smith to be there. According to Ofc. Smith, a violation of this probationary condition 

was not contingent on whether the victim was actually present at the time of the 

Defendant‟s visit; however, Ofc. Smith was unsure if the victim still lived there in August 

2015. 

 

1

 His sentence in case number C07-211A was revoked for ninety-three days based upon his guilty plea to 

attempted rape. 

2

 The Defendant‟s sentence in case C07-211A was set to expire on December 8, 2015.

3

 The Defendant had previously been declared a sex offender and required to register in the State of 

Illinois.
3

Describing another violation, Ofc. Smith testified about pornography he found on 

the Defendant‟s phone. Ofc. Smith conducted “a home check” with the Defendant and 

asked to view the phone that the Defendant used to call Ofc. Smith. The Defendant 

indicated the phone was on the table. Ofc. Smith retrieved the phone and found two 

pornographic videos on the phone that said “downloaded.” According to Ofc. Smith, 

“[t]hey were the same videos, but the videos started at two different points.” Ofc. Smith 

photographed the videos because he did not “have the right to seize [the Defendant‟s] 

phone[,]” and those photographs were entered into evidence.

On cross-examination, Ofc. Smith was asked about a letter signed by the site 

manager of Eaglewood Apartments indicating that the victim had moved from that 

location almost a year prior to the Defendant‟s presence. That letter was admitted as an 

exhibit. 

Ofc. Smith agreed that the violation report was not filed until several months after 

the curfew violations occurred. Instead, Ofc. Smith initially decided to sanction the 

Defendant by lowering his curfew time. Ofc. Smith confirmed that he discussed these 

four incidences with the Defendant, and the Defendant never indicated that he missed 

curfew due to employment issues. Thereafter, Ofc. Smith testified that the Defendant 

“was instructed to go straight to work and . . . straight home” because of an incident in 

January 2015 when the Defendant had broken into the “medicine tray” of his fiancée, 

Barbara Thompson, while she was in the hospital. Although a police report was filed, the 

hospital decided not to pursue charges according to Ofc. Smith, “[s]o [he] took a sanction 

as in trying to lower his curfew to go straight to work and home, nowhere else.” The 

Defendant objected, arguing that he had no notice that Ofc. Smith would testify about the 

medicine tray incident at the hospital. The trial court overruled the objection, concluding 

that the defense had opened the door for this line of questioning by asking “why [Ofc. 

Smith] had not filed a report[.]”

Ofc. Smith explained that the Defendant was living with his mother at the time of 

the four curfew violations and that he was trying to leave early before work to go see Ms. 

Thompson, which he did not have permission to do “because of the incident at the 

hospital.” According to Ofc. Smith, the Defendant did not notify him of any 

transportation issues that caused him to violate his curfew restrictions. 

Ofc. Smith reiterated that he took the phone with the pornography on it directly 

from the Defendant, disagreeing that he took it from Ms. Thompson, the Defendant‟s 

fiancée, although she was admittedly present at the time. Ms. Thompson explained to 

Ofc. Smith that it was she and one of her ex-boyfriends depicted in the video. However, 

Ofc. Smith played the video and confirmed that Ms. Thompson and her ex-boyfriend 

were not the subjects of the video; Ofc. Smith had personally supervised Ms. 

Thompson‟s ex-boyfriend. In response to Ofc. Smith‟s allegations, Ms. Thompson then 
4

claimed her daughter was the female in the video. Ofc. Smith agreed that sometimes Ms. 

Thompson answered the phone when he called the Defendant. 

 

Next to testify was probation officer Darryl McElrath, who was with Ofc. Smith 

when they went to the Defendant‟s house for “a home visit” on August 11, 2015. Ofc. 

McElrath testified that Ofc. Smith asked for the Defendant‟s phone shortly after they 

entered the residence. Ofc. McElrath further testified that the Defendant tried to hand 

Ofc. Smith a phone he had on his person, but Ofc. Smith asked to see the phone the 

Defendant usually called Ofc. Smith on. Ofc. McElrath testified that the Defendant 

pointed to a phone on the table, and Ofc. Smith picked up that phone. Ofc. McElrath 

watched the videos found on the phone along with Ofc. Smith, and he likewise believed 

them to be pornographic in nature. Furthermore, Ofc. McElrath likewise did not believe 

Ms. Thompson‟s claim that the videos contained images of Ms. Thompson and her exboyfriend. He confirmed that Ms. Thompson changed her story once they watched the 

videos, asserting then that it was her “daughter and her [daughter‟s] boyfriend” in the 

videos. 

Ms. Thompson testified on behalf of the Defendant. She stated that the phone 

Ofc. Smith viewed belonged to her but agreed that it was the phone the Defendant “used 

as a contact phone” with “the probation office.” 

On cross-examination, Ms. Thompson confirmed that she had a misdemeanor 

conviction for simple possession of marijuana, but she had completed her probation on 

that charge. She disagreed that she acted as a confidential informant “[t]o work off [her] 

charges” related to “a drug problem.” When asked if she was aware that the Defendant 

had written down her phone number as his contact number with the probation office and 

stated it was his number, Ms. Thompson replied that she did not “believe that.”

Next, the Defendant testified that he did not download the pornographic videos 

and that the phone viewed by Ofc. Smith belonged to Ms. Thompson. He agreed that he 

used the phone to contact the probation office but claimed that he only did so because he 

lacked funds to buy his own phone. He asserted that he also used his mother‟s phone 

number as a contact number. The Defendant further stated that his son and Ms. 

Thompson‟s daughter had access to Ms. Thompson‟s phone, but he had asked Ms. 

Thompson not to let the children use the phone. 

The Defendant testified that he missed curfew on the four dates listed in the 

violation report because he was borrowing Ms. Thompson‟s car. Although he did have 

regular use of Ms. Thompson‟s car to get to work, Ms. Thompson had doctor‟s 

appointments that required her to use the vehicle, so he “had to get that car back to her” 

when she needed it “or [he] wasn‟t gonna have no way back and forth to work.” He 

claimed that he explained his predicament to Ofc. Smith. The Defendant also asserted 

that sometimes the GPS device “went off” because it was not set to the proper time zone. 
5

The Defendant admitted he was at Eaglewood Apartments on August 9, 2015, but 

stated that he was visiting his twenty-seven-year-old daughter, whom he had not seen in 

twenty years. The Defendant confirmed that he was only there for thirteen minutes and

was accompanied by Ms. Thompson and another woman. The Defendant asserted that he 

left promptly when Ofc. Smith called Ms. Thompson‟s phone and asked why the 

Defendant was at Eaglewood Apartments. The Defendant claimed that Ofc. Smith “said 

it would all be right” if they would just leave the premises and “meet somewhere else.” 

On cross-examination, the Defendant stated that, when he visited Eaglewood 

Apartments that day, he did not know whether the victim still resided there or not. The 

Defendant said that he “went to the opposite building way on the other end.” He claimed 

that his daughter, who was from Illinois, did not know the area well and that he had to go

to Eaglewood Apartments and get her because she was there visiting with a friend. The 

Defendant asserted that he did not know he was prohibited from visiting the apartments. 

Furthermore, the Defendant said that he received permission to go see Ms. 

Thompson in the hospital following her surgery. However, he denied breaking into the 

medicine tray at the hospital during that visit and claimed that he did not get into 

“trouble” because he was searched and they did not find anything on his person. 

As a registered sex offender, the Defendant was aware that he was not supposed to 

possess any kind of pornographic material, and he did not “keep a phone” for that reason. 

He denied knowing that Ms. Thompson‟s phone contained pornographic videos and 

claimed that he had “a government phone” of his own. 

Ofc. Smith was recalled and confirmed that the Defendant had provided his 

mother‟s phone number as a contact number while he was living with her. However, 

once the Defendant moved in with Ms. Thompson at an approved address, he provided 

Ms. Thompson‟s phone number to Ofc. Smith. He also supplied the “government food 

stamp phone” later to Ofc. Smith as a contact number. According to Ofc. Smith, the 

Defendant never asserted that the phone in question belonged to Ms. Thompson until the 

hearing. 

Ofc. Smith added that, on September 27, 2015, after the violation warrant had 

been filed, the Defendant‟s GPS tracking device indicated that he was again in the area of 

Eaglewood Apartments. Ofc. Smith phoned the Defendant and asked him what he was 

doing there on a Sunday, to which the Defendant replied that he was “over there all the 

time” for doctor‟s appointments. Ofc. Smith opined that the Defendant did not have such 

an appointment on a Sunday, and Ofc. Smith made a “contact note” describing the 

incident. The Defendant objected to this testimony, saying that he had no prior notice of 

the September 27, 2015 incident, but the trial court overruled the objection and entered 

the “contact note” regarding the September incident into evidence. Ofc. Smith clarified 

that he observed the Defendant driving north on Parr Avenue and the Defendant “had just 
6

passed the Eaglewood Drive exit.” The Defendant was not seen actually in Eaglewood 

Apartments, only in the area; however, Ofc. Smith stated that he had warned the 

Defendant that being in the area might set off his GPS device. When Ofc. Smith asked 

the Defendant why he was “in the area after a violation [had] been filed on him,” the 

Defendant told Ofc. Smith that he was using Parr Avenue to get to Wal-Mart. Ofc. Smith 

opined that the September incident was proof that the Defendant was “gonna do what he 

want[ed] to do.”

After finding that the Defendant had violated the terms of his probation, the trial 

court revoked the Defendant‟s probation and ordered him to serve the balance of his

effective ten-year sentence in confinement. In so concluding, the trial court reasoned as 

follows:

I think it is enough to violate him under the circumstances. The testimony 

of [Ofc.] McElrath and [Ofc.] Smith is more persuasive than that of Ms. 

Thompson or [the Defendant]. . . . He‟s got the curfew violations. And 

then we get to August and then we get to the things that finally breaks—the 

straw that breaks the camel‟s back. I think the situation is that [the 

Defendant] is simply not gonna be told what to do.

Whether the victim was still living there or not is not the issue. 

[Special condition number 8 of Rule 12] requires him not to go around 

where the victim at any time was. The rule that [Ofc.] Smith read is very 

clear about that. He‟s not supposed to be there. The [c]ourt finds the 

testimony of [Ofc.] Smith and what‟s shown on the violation to be 

persuasive.

The Defendant perfected a timely appeal.

ANALYSIS

The Defendant contends that the trial court erred when it relied on his visit to 

Eaglewood Apartments on September 27, 2015, as a basis for revoking his probation

because he did not have notice of the incident prior to the hearing. The Defendant further 

contends that there were mitigating factors to his presence at Eaglewood Apartments in 

August that the trial court ignored. Additionally, the Defendant contends that the four 

curfew violations were not severe enough to constitute a probation violation and should 

not have been used to revoke probation, noting that it was “undisputed that said curfew 

violations were because of a transportation issue to and from work.” Lastly, he notes the 

trial court found no merit to the allegation of pornography downloaded on the phone, 

observing that the trial court made no mention of this allegation in its ruling. 
7

The State responds that the four curfew violations alone were enough to support 

full revocation because the Defendant admitted the violations and the trial court fully

accredited Ofc. Smith‟s testimony; accordingly, “all of his arguments are rendered

irrelevant by the uncontested curfew violations[.]” The State also submits that other less 

restrictive measures besides confinement were attempted and failed, noticing that several 

violations occurred, including pornography possession and the Defendant‟s presence at 

the victim‟s last known address; that the Defendant‟s probation in case number C07-

211A had previously been revoked; and that Ofc. Smith had already implemented 

sanctions by lowering curfew. We agree with the State that the evidence presented at the 

revocation hearing supports full revocation. 

A trial court may revoke a sentence of probation upon finding by a preponderance 

of the evidence that the defendant has violated the conditions of his release. Tenn. Code 

Ann. § 40-35-311(e). If the trial court revokes the probation, it has the right to “extend 

the defendant‟s period of probation supervision for any period not in excess of two (2) 

years,” “commence the execution of the judgment as originally entered,” or “[r]esentence 

the defendant for the remainder of the unexpired term to any community-based 

alternative to incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e). In a 

probation revocation hearing, the credibility of the witnesses is determined by the trial 

court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

The decision to revoke probation is in the sound discretion of the trial judge. State 

v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); Mitchell, 810 S.W.2d at 

735. The judgment of the trial court to revoke probation will be upheld on appeal unless 

there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). 

To find 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.” Id. (citing State v. Grear, 

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

App. 1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011). 

Such a finding “„reflects that the trial court‟s logic and reasoning was improper when 

viewed in the light of the factual circumstances and relevant legal principles involved in a 

particular case.‟” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. 

Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

In the present case, the trial court first found the testimony of Ofc. Smith and Ofc. 

McElrath to be more persuasive than Ms. Thompson‟s or the Defendant‟s. The trial court 

then stated that the four curfew violations and the Defendant‟s presence at Eaglewood 

Apartments in August were reasons for the revocation. The trial court noted that Rule 12 

explicitly made clear that the Defendant was not to go to Eaglewood Apartments, 

regardless of whether the victim was still living there. The trial court also stated that the 

Defendant was “simply not gonna be told what to do.” The trial court did not specifically

rely on the possession of pornography in rendering its decision to revoke. 
8

The Defendant admits that he violated curfew on these occasions without 

permission but contends that the transportation issues he experienced getting to and from 

work should excuse the four curfew incidents. The Defendant further notes that Ofc. 

Smith did not find them to be severe enough at the time to file a probation violation

report. However, Ofc. Smith testified that he discussed these four incidences with the 

Defendant and that he had no notice that the Defendant was late for work because of 

transportation issues despite what the Defendant claimed at the hearing. Moreover, Ofc. 

Smith initially imposed sanctions by lowering the Defendant‟s curfew time and 

instructing him to go straight to and from work, which instructions the Defendant

continued to disobey. 

Moreover, the Defendant asserts that the trial court ignored several factors that 

mitigated his August appearance at Eaglewood Apartments: (1) he was only there for 

thirteen minutes to visit his daughter, whom he had not seen in twenty years, and he was 

accompanied by others; (2) the rape victim did not live there anymore; and (3) he left the 

complex promptly after Ofc. Smith‟s phone call. We agree with the trial court that the 

rules of the probation made it clear the Defendant was prohibited from being at 

Eaglewood Apartments. Ofc. Smith testified that the Defendant had not obtained prior 

authorization to be there and that a violation of this condition was not contingent upon 

the victim‟s actually being present at the time of the Defendant‟s visit. Additionally, 

based upon the Defendant‟s own testimony, he did not know that the victim no longer 

lived at Eaglewood Apartments when he visited.

The Defendant also argues that the trial court committed error by basing its 

revocation decision on the September 27, 2015 incident at Eaglewood Apartments

because he did not have notice of the incident prior to the hearing. The trial court‟s

ruling does not support that argument, remaining silent on the September incident all 

together. Additionally, because we conclude that the other bases relied upon by the trial 

court support revocation, we decline to address the Defendant‟s possession of 

pornography as the trial court did not specifically reference that violation in its decision 

to revoke. Although in so doing, we do not adopt the Defendant‟s assertion that trial 

court found no merit to this allegation. 

The trial court found Ofc. Smith‟s testimony to be more persuasive than the 

Defendant‟s, and we defer to this credibility determination on appeal. We are 

unconvinced by the Defendant‟s arguments that the curfew violations and his presence at 

Eaglewood Apartments in August should be mitigated and not serve as proper bases for 

revocation. We agree with the trial court that the Defendant‟s behavior while on 

probation shows that the Defendant is “simply not gonna be told what to do.” We 

conclude that the trial court did not abuse its discretion in revoking the Defendant‟s 

probationary sentence and ordering the balance of his effective ten-year sentence to be 

served in confinement.
9

CONCLUSION

Based upon the foregoing and the record as a whole, the judgment of the trial court 

is affirmed. 

_________________________________ 

D. KELLY THOMAS, JR., JUDGE