### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 1, 2002 STATE OF TENNESSEE v. JERO ME F. SAWYERS Direct Appeal from the Criminal Court for Davidson County

No. 99-C-2175 Walter Kurtz, Judge

No. M2001-02878-CCA-R3-CD - F iled December 3, 2002

The defenda

nt, Jerome

F. Sawy ers, pled guilty on July

16, 2001, to possession of cocaine less than .5 grams for resale and fe lo ny p os se ss io n o f a fi re ar m a nd wa s s en te nc ed , r es pe ct iv el y, to six years andtwo y ears asa Range I, sta ndard offender, with both sentences to be served concurrently . A violation of proba

tion warr ant was is sued on Au gust

8, 2001, alleging that he had violated probation bybe ing in possession of a weapon and failing to repor t to his probation officer as ordered

. Following a hearing, the

trial cou rt r evok ed the defendant’s probation; and he timely appealed, arguingthat the proof was insufficient that he had violated the termsof his probation. We conclude that the evidence supports the revocation of probation. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed A LAN E. G LENN , J., delivered the opinion of the court, in which D AVID H. W ELLES and J AME S C URWOOD W ITT , J R ., JJ., joined. Justin Johnson, Nashville , Tennes see, for the appe llant, Jero me F. Sawye

rs. Paul G. Summers, Attorney Gene ral and Reporter; El izabeth B. Marney , Assistan t Attorne y General ; Victor S. Johnson, III , District

Attorney Gene

ral; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION At the probation revocation hearing, William Coughlin testified that he had pre pared and filed the probation violation warrant alleging that the de fendant had vi olated the terms of h is probation. He said that the defendant had not reported to him since being placed on probation and, re po rt ed ly, had beenin possess ion of a w eapon in violation o f the pro

bation or der. De tective D avid Scott Wilder, of

the Nashville Metropolitan Police Department K-9 Squad, said that on July 28, 2001, he had investigated a shooting in which the defe ndant was the victim. He had beenasked to bring his dog to search the area where the defendant had been located, “r oughly a bout half-a-mile, quarter of a mile” f rom the crime sce

ne. At the

second lo cation, h

e found a “Smith & Wesson, 40-2-

caliber, semi-automatic pistol,” which had blood on it. A purple Cadillac, with several bullet holes, hadrolled or crashed into a barrier at the crime scene. Sever al bras s shel l casi ngs we re fo un d n ea rb y, andthere was blood

in the Cadillac. A trail of blood began at the Cadillac and “went towar ds” the area where the pistol was found. The bra ss shell ca sings we re of dif ferent caliber s but some

were .40 caliber, as was the pistol that was found twenty to thirty feet from where emerg ency pe rsonnel had foun d the def

endant. Ray Crumby, Jr., a detective

withthe Metro Homicide Unit, said that he had investigated the shooting of the defendant and that shell casings from different wea

pons wer e found a t the crim e scene. He assumed the defendant’s car ha d crashed into a gate restricting access to the apartment complex where th

e shooting

occurr ed. Bec ause of s hell cas ings “r ight b y th e door” of the defendant’s car, Crumby be lieved that the defendant had “returned f ire.” Blo od was in the defendant’s car, .40 caliber shell ca sings were fo und by hi s car, a nd ni ne-mi llim eter s hell c asings were found nearby . Beside one of the buildings in the apartment complex, “may be, 75 yards a

way from” the defendant’s car, was a “l arge amount” of shell casings from a “high pow ered assault-ty pe rifle.” Crumby said that

he had sp oken sev eral time s with the d efenda nt, who said that “he believed he was set up.” The defendant explained to Crumby what had occurred: When he went

over to visit a friend that lived in the complex, as soon as she got out of the car, a white car pulled up on him, he had to drive aroundthe white car, different people jumped out and started shooting at him f

rom differe

nt angle s, that’s w

hen he wa s try

ing to escape, and he rammed the purple Cadillac into the ba rrier. And as he wa s in the Cad illac, a gentlemen

[sic] came

up to him with a pump shot gun or a sawe d off shot gun, shot him in the face. And then, [the defendant] was able to flee the Cadillac and run aw ay. The defendant had

said that, after being shot, he fled toward “Clarksville Highway ,” where he had been picked up by an ambulance. Crumby

sai d he knew the defe ndant had a gun a nd told him so. In response, the

defendant “didn’t say

anything, he

just paused.” The defendant did not say that anyone e lse had beenshot. At first, the defendant was coopera tive with Cr

umby , but, upon

his release from the hospital, he “said he’d take c are of it, or he said he didn’t want to prosecute.” ANALYSIS The authority of the trial cour t to revoke a suspended sentence is setout in Tennessee Code Annotatedsecti on 40- 35-31 1(e) es tabli shin g th at the pr eponder ance of the evide

nce standard is utilized to d

etermine whether the viola tion has been prove

n: If the trial judge should find that the defendant has vi olat ed the conditions of probation and suspension by a pr eponderance of the-3- evidence, the trial judge shall have the right by order du ly entered upon the minutes of the court, to revoke theprobation andsuspension of sentence and cause the defenda nt to commence the execution of the judgment as originally entered, o r other wise in ac cordanc e with § 40-35-310; provided , th at in case of such revocation of probation and suspe nsion, the defenda nt has the right to appeal. Tenn. Code Ann. § 40-35-311(e) (Supp. 2001). The function

of the ap pellate c ourt reviewing

the revo cation of

a su spended s entence was explained in State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991):

We take n ote th at a tr ial j udge may revoke a sentence of probation or a suspended sentence upon a finding that the defendant has violated the cond i ti on s o f h is pr ob at io n o r s us pe nd ed se nt en ce by a preponderance

of the evidence. T.C.A. § 40-35-311. The judgment of the trial court in th

is regard will not be disturbed on appeal unless it ap pears that there has been an abuse of discretion. Stat e v . Williamson , 619 S.W.2d 145, 146 (Tenn. Cr. App. 1981). In order for a reviewing court to be warr anted 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 j udge that a violation of the conditions of probation has occurred. Statev. Grear , 568 S.W.2d 2 85, 286 (Tenn. 1978 ); State v. Delp , 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980). The proof of a probation violation need not be established bey ond a rea sonable d

oubt, but it

is suff icient i f it allows the trial judge to make a conscientious and intelligent

judgment. State v. Milton , 673 S.W.2d 555, 557 (Ten n . Cr. App. 1984). Following the presentation of proof at the revocat ion hea ring, th

e trial c ourt expla

ined its basis for revoking the defe ndant’s s uspende d sentenc es: Well, has the State proved that he was in possession of th e weapon b ey ond a rea sonable d oubt? The answer is no. But has the Statesustained that by the burden it has, w hich is a preponderance of t he ev idence? And the answer is yes. I t’s more likely than not that [the defendant] was in possession of this weapon. The weaponwa s found 20 or 30 feet from him, 700 y ards away from where the incident

took place, it had blood on it, the she ll casin gs ou tside the car all corroborate the State’s theory . And the admission by silence testified to is further c orroboration.-4- So the State has carried its burden unde r 40 -35-311(e) of showing the violation here. He was in possession of this firearm. I t’s the judgmen

t of th e Court that the previously suspended se ntence – well, the revocation warrant is sustained. The suspendedsentenc e is pl ac ed in ef

fe ct in it s t ot al it y.

CONCLUSION We conclude that th e r ec or d a bu nd an tl y su pp or ts th e f in di ng of th e t ri al co ur t t ha t, by a preponderance

of the evidence, the State proved that the defenda nt v iolated th

e terms of

his prob ati on by p ossessing

a pistol. Accordingly , the orde r revoking the d

efenda nt’s prob ation is affirmed.

___________________________________ ALAN E. GL

ENN, JUDGE