### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs Ja nua ry 23, 200 7

STA TE OF TEN NES SEE v. C HRIS TOP HERNA THA NIEL RIC HAR DS ON

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 2005-I-401 Ste ve Doz ier, Judge

No. M2006- 01060-CCA -R3-C D 

### - F ile d M ar ch 15, 200 7

The De fenda nt, Christopher Nathanie l Richardson, pled g uiltyto one count of posse ssion of a controlled substanc e with the intent to deliver, a nd he was sentenc ed as a Rang e I I multipl e off

ender to seven y ear s of supervise d probation, wit h the first y ear to be ser ved on intensive probation. After two probation violation warr ants wer e issued base d upon two arr ests and other violations, the trial

c o u r tr e v o k e d t h e D e f

e n d a n t ’ s p r o b a t i o n a n d o r d e r e d h i m t o s e r v e h i s s e n t e n c e i n c o n f i n e m e n t

. It is from this jud g ment that the Def endant now a

ppeals, c ontending that, while the trial c ourt was wi thi n it s d isc re tion to rev ok e his pr ob a tio n, his vio la tio n d oe s n ot w arr a nt the imp os iti on of his

e nti re se nte nc e . Co nc lud ing the re e xists no e rr or , w e a ff ir m th e jud g me nt o f the tr ia l c ou rt

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which D AVI D H. W ELLES and T H O M A S H. W O O D A LL , J J ., joined.

Emma Rae Te nnent (on a

ppeal) , Graham Prichar d and Ky le F. Mothershea d (at he aring ), Na shville, Tenne ssee, f

or the a ppellant, Christopher Nathaniel Richardson.

Rob e rt E. Coo pe r, Jr., At torne y Ge ne ra l and Re po rt e r; Sop hia S. L e e , A ssi sta nt A tto rn e y Ge ne ra l; Victor S. J ohnson, I I I , Dist ri ct At t orney Gene ral; Rache l Sobrero, Assistant District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION I. F acts

Th is c a se ari se s f

ro m the re vo c a tio n o f the De fe nd a nt’ s p ro ba tio n. Th e De fe nd a nt o ri g ina lly pled g uilty to posse ssion of a controlled substance with the intent to deliver. At t h e D efendant’s g uiltyplea he aring , on April 14, 2005,the State told the court that, ha d the ca se g one to trial, the evidenc e would prove that “on March eighth, two-thousand-five, Me tro Police executed a narc otics

se arc h w arr a nt at the De fe nd a nt’ s re sid e nc e

. . . a nd du ri ng the e xec uti on re c ov e re d a ba g of wh ite rocks f rom his bedroom closet i n a b l u e b ox . . . . [The] [s] ubstance was fie ld-tested positive for2

coca ine base .” The Def

endant a g ree d that the ev i d ence would prove those f acts, a nd he off

ere d a plea of g uiltyto possession of a controlled substanc e f o r re s al e. The trial c ourt imposed on the Def endant, a Rang e I I offe nder, a

sentenc e of se ven y ear s of proba tion, with t h e fi rs t y ear being intensive probation.

On Aug ust 1, 2005, a probation violation war rant wa s issued alleg ing that the Def endant ha d violated his probation by

being arr ested and char g ed with being in unlawful possession of a ha ndg un during his curfe w hours, by not reporting the arr est to his probation or parole off icer , by not verifying employ ment, and not paying c ourt costs. On Aug ust 26, 2005, the t rial court sustained this probation violation warra nt and took the issue of the D efe ndant’s punishment under a dvisement.

On Marc h 10, 2006, a sec ond probation violation warr ant was issued a lleg ing that the Def endant wa s arr ested for

possession or ca sual exc h an ge of a c ontrolled substance and that the Def endant did not re port this arre st to his probation officer. On M arc h 29, 2006, at a hearing on the pr ob a tio n vi olat ion wa

rr a nt, B ra dle y

Na ve te sti fi e d th a t he is a n o ff ic e r w ith the Me tr o- Na sh vil le Police Depa

rtment. On Mar ch 4, 2006, he responde d to a ca ll to a residenc e at 12:30 a.m. whe re he found the De fenda nt holding a sma ll baby . The De fenda nt stated that he was there to see his child. Whe n O ff

ic e r N a ve loo ke d aro un d, he sa w in the int e ri or of a se a t, six inc he s fr om the De fe nd a nt, a small plastic bag that appea red to contain marijuana . The off icer asked the Def

endant if the bag

wa s h is, a ndthe De fe nd a nt s a id “ no .” Th e on ly oth e r pe op le a t the re sid e nc e we re a n in fa nt c hil d

a ndthe De fe nd a nt’ s e x-g ir lf ri e nd , a ndthe of

fi c e r t oo k the De fe nd a nt i nto c us tod y . T he of fi c e r s a id that a trial judg e dete rmined that possession was not prove n bey ond a re asonable do u bt and dismiss ed the c ase. O n cross-e x amination, the offic er a g ree d that no t h ing w as found on the Def endant’ s person a nd that the Def endant did not appe ar unde r the influenc e of ma rijuana.

The De fenda nt’s probation officer, Peter Kambitsi s, testified t hat as part of the De fenda nt’s int e ns ive pr ob a tio n h e ha s a 6:0 0 p .m. c ur fe w. B e c a us e the De fe nd a nt ha d p ro vid e d p ro of fr om h is employ er tha t he works a t night, this curf ew wa s waived, but only

for the Defe ndant t o be at wor k. Kambitsis testified that the arr est for posse ssion was not reported to him. On cross-e x ami n ati on, Kambitsis ag ree d that the Def endant ha d been r eporting to him “relig iously ” a n d o n l ymissed reporting dates when he was inca rce rate d. T h e De fe n d ant told Kambitsis about the arre st after Ka mbi tsi s a sked hi m a

bo ut i t. K a mbi tsi s a g re e d th a t th e De fe nd a nt w a s p re vio us ly on e le c tr on ic monitoring a nd had no irre g ularities, including no positive drug scre ens, during that time. Furthe r, Kambitsis ag ree d that as fa r as he knew the D efe ndant was still employ ed.

The trial c ourt noted that the De fenda nt ha d tested positive in a drug scre en on the day of the hearing a nd asked the Def endant’ s attorney

if he wa s prep ar ed t o d ef end that alleg ation. The Def endant’ s attorney

responde d that he wa s prepa red to re spond to that alleg ation.

The De fenda nt called Niky lan Donato with the Public De fende r’s Offic e who testified that she re prese nted the De fenda nt at his be nch trial on the char g e of simple posse ssion. She said that Offic er N ave te stified at the trial that the Def endant was not on the lease of the a partment whe re the drug s were found, that he did not have any marijuana

on his pe rson, and that he did not seem to be3

under the influence of marijuana . The off icer also testified that, when he entered the apartment, the Def endant wa s standing up w ith his child i n front of a chair and that behind the cha ir was a table on which the marijuana wa s found.

The De fenda nt testified that he wa s awa re tha t he had test ed p o sitive for marijuana on the dr ug sc re e n th a t he too k the da y of tr ia l. He sa id that wa s be c a us e he ha d s mok e d ma ri jua na wh ile he wa s on probation but sa id that he had only done so once. The Def endant sa id that, since he ha d been on pr obation, he had be en wor king a s a janitor as muc h as seven day s a wee k and taking car e of his dau ghter . Fu rthe r, he ha d ta ke n s ix drug sc re e ns wh ile on pr ob a tio n, a nda ll o f the m c a me back c lean.

Wit h reg ard to his bac kg round, the De fenda nt testified that he beg an selling drug s at thirteen beca use both of his pa

rents used drug s. He said that he had not sold drug s at all since he had bee n on probation and tha t he was try ing to be a differ ent m an and a good father. The Def endant a g ree d that he ma de on e mis take by smo kin g mari

jua na a nda sk e d to be pla c e d b a c k o n ele c tr on ic monitoring. The Def

endant sa id tha t his daug hter wa s with him every day and that he took c are of her.

Upon questioning by the trial court, the Defenda nt explained that the day that he wa s arr ested for marijuana possession, his daug hter wa s not with him beca use hi s ex-girlf

riend ha d taken he r af

ter

an ar g ument. When he went to see his daug hter at his ex-girlf riend’s house, she called the police. Th e De fe nd a nt sa id that he wa s not sup po se d to go to his e x-g ir lf ri e nd ’s ho us e

. Th e De fe nd a nt t old the court that he was trying to be a produc tive citizen.

On cr oss-examination, the Defe ndant testified th at he smoked marijuana since Marc h 4, 20 06 , a ndhe smo ke d it

wh ile inc arc e rate d. Th e De fe nd a nt s a id tha t he smo ke d th e mari jua na wi th oth e r i nmate s, bu t he didno t kn ow the ir na me s. Th e De fe nd a nt de nie d that he ha d a dr ug pr ob le m. About the night that he was arr ested, the Def endant testified that his e x -g irlfriend asked him to leave,

a ndhe tol d h e r h e wo uldle a ve wh e n h e ha d to g o to wo rk , w hic h w a s a t 1: 00 a .m.

Ba sed upon this evidence , the trial court sustained this warra nt an d t o o k the issue of the Def endant’ s punishment under adviseme nt. I n its final order, the trial court f ound:

The defe ndant has been on felony probation two (2) times a ccor ding to h i s re cord with three ( 3) prior violations. As sug g ested above, t he C ourt is of the opinion that

a ft e r t akin g the op po sin g arg ument s a ndpr oo f i nto c on sid e ratio n, the su ita ble resolution to the issue is to order the defe ndant’s sente nce to be place d into effe ct.”

I t is from that judgme nt that the Def endant now a

ppeals.

II. Ana lys is

On appe al, the De fenda nt conce des that the trial c ourt did not abuse its discretion in finding4

that he had violated a condition of his pr obation. He, howeve r, contends that his violation does not

wa rr a nt the imp os iti on of

his e nti re se ve n y e ar s e nte nce in c on tin uo us c on fi ne me nt. He a sk s th is Court to reinstate his probation.

When a trial court determine s b ya pre pondera nce of the evidenc e that a pr obationer ha s violated the conditions of hi s or her probation, t he trial court has the authority to revoke probation. Tenn. Code Ann. § 40- 35-311(e ) (2006)

. Upon finding that the def endant ha s violated the conditions of probation, the trial court may revoke the proba tion and either: (1) order incar cer ation; (2) orde r the orig inal probationary period to c ommence anew ; or (3) e x tend the re maining pr obationary period for up to two additional y ear s. State v. Hunter, 1 S. W

. 3 d 6 4 3
, 644 (Tenn. 1999) ; see Te nn. Code Ann. § 40-35-310 ( 2006); Tenn. Code A nn. § 40-35-311( e) ( 2006); Tenn. Code Ann. § 40-35-308( c) (2006). The defe ndant has the rig ht to appea l the revoc ation of his probation and e ntry of his orig inal
sentenc e. Te nn. Code Ann. § 40-35- 311(e) . Upon a finding of a violation, the trial court is vested with the s t at u t o ry authority to “re voke the pr obation and suspension of se ntence and ca use the defe ndant to commence the ex ecution of the judgme nt as orig inally enter ed . . . .” T enn. Code Ann. § 40-35-311( e); Hunte r, 1 S

. W

. 3 d at 646 (holding that the trial court retains the discr etionary authority to order the defe ndant to serve his or her origina l sentence in confineme nt). Furthermore
, when pr obation is r evoked, “the orig inal judgme nt so rende red by the trial judge shall be in full force and ef fec t from the date of the re vocation of suc h suspension

. . . .” Tenn. Code Ann. § 40-35-310. The trial judg e re tains the discre tionary authority to order the defe ndant to serv e the origina l
sentenc e. See State v. D uke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

The de cision to revoke pr obation is in the sound discretion of t he trial judg e. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) ; State v. Mitchell, 810 S.W .2d 733, 735 (Tenn. Crim. App. 1991) . The judg ment of t he trial c ourt to revoke probation will be upheld on appea l unless there ha s b ee n an ab u s e of discr etion. State v. Har kins, 811 S.W .2d 79, 82 (Tenn. 1991). To find a n abuse of discretion in a probation revocation ca se, the re cord must be void of a ny substantial evidenc e that would support the trial court’s decision that a violation of the c onditions of probation occurr ed. I d.; State v. Gre ar , 5 6 8 S

. W

. 2 d 285, 286 (Tenn. 1978) ; State v. Delp, 614 S.W .2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows the trial court to make a conscie ntious and intelligent judg ment. State v. Milton, 673 S .W.2d 555, 557 (Tenn. Crim. App. 1984)

. I n revie wing the trial court’s finding , it is our obligation to examine the re cord a nd deter mine whether the trial court has exercised a conscie ntious judgment rather than

an ar bitrary one. M i t ch el l
, 8 1 0 S.W .2d at 735. I n our view, a fter e x erc ising a conscie ntious judgme nt as to wh ether

or not a De fenda nt has violated the terms of a probated sentenc e, the tria l

c ou rt m u s ta l s o e xe r c i s e a c o n s c i e n t i o u s r a th e r

t h a n ar b i t r ar y j u d g m e n ta s t o a n ap p r o p r ia te dispositi on. State v. Steven Kelly Fr aze, No. M2005-01213-CCA-R3-CD, 2006 WL 618300, at *9 (Tenn. Crim. App., a t Nashville, Mar. 13, 2006)
, no Tenn. R. App. P. 11 application filed

.

I n th is c a se , th e De fe nd a nt a dmi tte d a vio la tio n o f the te rm s o f p ro ba tio n. Th is a lon e is substantial evidence of re cord to support the tria l court’s re vocation order. S ee State v. Eric D. Deva ney , No. E2005-01986- CCA-R3-CD, 2006 WL2373469, at * 4 (Tenn. Crim. App., at Knoxvi lle, Aug . 17, 2006), no Tenn. R. App. P. 11 application filed ; State v. Michael Emler , No.5

01C01-9512-CC-00424, 1996 WL 691018, at *2 (Te nn. Crim. App., at Nashville, Nov. 27, 1996) (holding wher e the de fenda nt admits a vio l at i o n o f t h e terms of probation, re vocation by the trial
court is ne ither arbitra

ry nor ca pricious), no Tenn. R. App. P. 11 application fil ed . We understand the De fe nd a nt’ s c on te nti on that he sh ou ld n ot b e ma de to se rv e his e nti re or ig ina l se nte nc e be c a us e he only technica lly violated hi s probation. I n our vi ew, after exercising a conscie ntious judgment

a s to wh e the r o r n ot a De fe nd a nt ha s viol a te d the te rm s of a p ro ba te d s e nte nc e , th e tr ia l c ou rt mus t also exercise a

conscie ntious rather tha n arbitra ry judgme nt as to an appr opriate disposition.

We conclude tha t the trial court did not abuse its discretion in t his case. T he re cord pr oves that the Defen dant ha d p re vio us ly vio la te d h is p ro ba tio n b y c arry ing a

ha nd g un a ndmis sin g his

c ur fe w h ou rs . F urthe r, on thi s o c c a sio n, the De fe nd a nt w a s a t hi s e x-g ir lf ri e nd ’s ho us e a ft e r h is curf ew, whic h was a

violation. The Def

endant was char g ed with posse ssion of marijuana , and he fa ile d to re po rt thi s cha

rg e to his pr ob a tio n off

ic e r. F ina lly , on the da y

of his he ari ng to r e vo ke his probation, the De fenda nt tested positive for marijuana and a dmitted smoki n g t he same with other inmates in the jail. We c onclude that, based upon the evidenc e prese nted, the trial court e x erc ised

a c on sc ie nti ou s ju dg me nt r a the r tha n a n a rb itr ary on e wh e n it

or de re d th e De fe nd a nt t o s e rv e his
sentenc e in prison. Ther efor e, the De fenda nt is not entit led to relief on this iss ue.

III. Conclusi on
We ag ree with the j udg ment of t he trial c ourt. Acc ording ly , we a ffirm the r evocation of the Def endant’ s probation and the imposition of his sentence

.

___________________________________ ROBERT W. WEDEMEYER, J UDGE