### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT KNOXVI LLE A ssi gne d on Br ie fs N ove m be r 14, 200 6

STA TE OF TEN NES SEE v. RE GINA LD E. BOST
Appeal f romthe Cr im inal Cou rt for K nox Coun ty No. 80005 Richard R. Baum gartner , Judge

No. E2006-00661-CC A-R3- CD - F iled Janu ary 22, 2007

The De fenda nt, Reg inald E. Bost, a ppeals the decision of the Knox CountyCriminal Court revoking his alternative se ntence . I n J uly 2004, the Def

endant pled g uilty to possession with intent to sell .5 g rams or more of coc aine a nd rec eived a n eig ht-y ear sentenc e. This sentenc e wa s suspended, a nd he wa s place d in the Communi ty Alternative to Prison Prog ram. On April 13, 2005, a warr ant was issued, wher ein it was alleg ed that the De fenda nt vio l at ed t h e conditions of the prog ram. The
war rant wa s later a mended to inc lude additional violations. After a hearing, the trial court c oncluded that t h e Defendant violated the conditions of his sentence and orde red that his original e ight- y ear senten ce to the Depa

rtment of Corre ction be re instated. On appe al, the De fenda nt arg ues that the evidenc e does not support full revoc ation of his a lternative sentenc e. Af ter a revie w of the r ecor d, the judg ment of the trial c ourt is affirmed.

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

D AVI D H. W EL L ES , J ., delivere d the opinion of the court, in which J O H N E VE R E TT W I L L I AMS and N OR MA M C G EE O G LE , J J ., joined.

J. L idd e ll K ir

k, Kn oxvil le , T e nn e sse e , f or the app e lla nt, Re g ina ld E . B os t.

Rob e rt E. Coo pe r, Jr., At torne y

Ge ne ra l and Re po rt e r; Pr e sto n Sh ipp , A ssi sta nt A tto rn e y Ge ne ra l; and Randa ll E. Nichols, District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

On J uly 2, 2004, the Def

endant was char g ed byinformation with possession of .5 g rams or
mor e of c oc a ine wi th i nte nt t o s e ll. Th a t sa me da y , th e Defen dant pl e d g uil ty a s c ha rg e d a nd“ a ll pending misdemeanors [were] dismiss ed[.] ” At the g uiltyplea he aring , the State summarized the fa c ts u nd e rl y ing the c on vic tio n a s f oll ow s:-2- Your Honor , if ca lled to trial in this m atter, w e’d c all the witnesses listed on t h e i n f o r m a t i o n

. T h e t e s t i m o n y w o u l d b e [ t h e D e f e n d a n t ] , h e w a s s t o p p e d o n M LK for a traff ic violation, and he wa s found to have i n h is possession crac k cocaine packa g ed for

resa le. Ther e wa s three ba g g ies; the amount being 8.5 g rams. I t was all packa g ed for

resa le. Further testim ony would be that all these events took plac e i n K n o x C o u n t y.

Pur su a nt t o the ne g oti a te d p le a a g re e me nt, the De fe nd a nt r e c e ive d a se nte nc e of

e ig ht y e ars a s a Rang e I , standard offe nder to be serve d in the Depa rtment of Correc tion. The s en t en ce was suspended, a nd the Def

endant wa s pl ac ed i n the Communit y Alternative to Prison P rog ram (“CAPP”) on Nove mber 18, 2004.

On Novembe r 23, 2004, a violation wa rra nt was issued, whe rein it was a lleg ed t h at the De fe nd a nt ha d vio la te d the c on dit ion s of CA PP by faili ng (1 ) t o ma

ke a fu ll a ndtruth fu l r e po rt

to h i s c a s e m a n a g e r , ( 2 ) t o k e e p c u r f e w , a n d ( 3 ) t o r e p o r tf

o r “ s u p e r v i s i o n /

p ar t i c i p a t e i n C A P P D [ a i l y] R[ eporting ] C [enter] activities.” On Dec ember 2, 2004, the Def

en d an t “s ubmit[ ted] to . . .
revoc ation[,] ” and the trial court found that the Def endant violated the conditions of the prog ram a nd revoke d his a lternative sentenc e. The Def endant was order ed to se rve six months i n t h e K n ox Countyjail, followed by

a re turn to CAPP at the conc lusion of his incarce ration.
On April 8, 2005, the Defenda nt was a g ain place d in CAAP. A violation warra nt was issued five da y s later on April 13, 2005, where in it was alleg ed that the Defendant ag ain violated the
c on dit ion s o f C APP by (1 ) p os se ssi ng or us ing a lc oh ol o r a

c on tr oll e d s ub sta nc e a nd(2 ) f a ili ng to
make a fu ll a ndtruth fu l r e po rt

to h is c a se ma na g e r. Th e wa rr a nt w a s a me nd e d o n July 28 , 200 5, to include the f

ollowing a dditional violations : (1) fa ilure to obey the l aws of the Unit ed S tates and the State of Tenne ssee; (2) failure t o m ai ntain active e mploy ment; (3) fa ilure to kee p his curfe w; (4) failu re to p a y

c ou rt c os ts; (5 ) f

a ilu re to p e rf

orm c ommun ity

se rv ic e ; (6) failu re to p a y c ommun ity
c or re c tio ns mon thl y

fe e s; a nd(7 ) f

a ilu re to r e po rt

fo r “ su pe rv isi on /partic ipate in C APP DR C activities.”

An e vid e nt iar y

hear in g was h eld on Mar ch 1 5, 20 06 . R ob in W il li ams , t he D efen dan t’ s CA PP
c a se ma na g e r, t estifi e d th a t sh e wa s a ssi g ne d to su pe rv ise the De fe nd a nt i n A pril o f 2 00 5. Ms. Willi a ms t e sti fi e d th a t the De fe nd a nt vio la te d the c on dit ion s of CAPP by us ing a lc oh ol, faili ng to maintain full-time employ ment, missing curf ews, failing to secure place ment in a halfw ay house as
or de re d, mis sin g “ we e kly su pe rv isi on s[,]” faili ng to a tte nd “ tr e a tme nt g ro up s[,]” faili ng to pa y fe e s, and fa iling per form community service . Acc ording to Ms. W i l l i am s , o n J une 27, 2005, the De fe nd a nt t e ste d p os iti ve fo r m e tha mph e ta min e , bu t thi s te st wa s no t “ c on fi rm e d. ” Ms. Willi a ms further testified that, in J uly of 2005, “we had done a drug sc ree n . . . on him because he smelled of alcohol ag ain, and he was positive that eve ning f or coc ai n e.” Ms. Williams st ated that, whe n the Def endant wa s informed of his test re sults, he ran fr om the building and c eased reporting to her

. Be cause the Def

endant ran from the bui lding, Ms. Wil liams was unable to “send [ the t est] off . . . .” Also, Ms. Wil liams testified that, on this occasion, the De fenda nt failed a “B reathaly zer[.] ”-3-

On cr oss-examination, Ms. W illiams st ated that the D efe ndant was require d to perform eig ht ho ur s o f c omm un ity

se rv ic e pe r m on th. She te sti fi e d th a t th e De fe nd ant comple te d a tot a l of six hours of c ommunityservice the entire time that he was in th e p ro g ram—April to J uly of 2005. Acc ording to Ms. W illiams, i n Ap ri l , t h e Defenda nt admitted that he had c onsumed four w ine
c oo le rs . M s. Willi a ms c on fi rm e d th a t th e De fe nd a nt w a s u ne mpl oy e d at th e tim e he e nte re d CA PP
a ndthat th e De fe nd a nt w or ke d s po ra dic a lly

wh ile on CA PP—t we nty -f ou r h ou rs on e mon th andsix hours another

. She also opined that, based on the Def endant’ s sporadic employ ment, he did not have “a w hole lot of money ” to pay fee s. She testified that the Def endant missed his 9:00 p.m. curf ew on April 3 0 , 2 0 0 5 , May

14, 2005, J une 22, 2005, June 30, 2005, J uly 25, 2005, and Jul y

27, 2005. Acc ording to Ms. W illiams, she phone d the Def endant’ s residenc e on these occa sions and no one
answe red the phone. She testified that, on July27, the Defenda nt returne d her curfe w ca ll at 9:38 p.m. and “sounde d thick-tong ued and sa id that . . . he didn’t use any cocaine.”

The De fenda nt testified on his own behalf. H e testified that he “tried” to obtain employment bu t t h at he “had to g o throug h a temp ser vice.” Acc ording to the Def endant, who did not have a GE D, he wo rk e d s e ve ra l te mpo ra ry job s whi le in C APP . H e state d th a t he wa s w ill ing to w or k in the fu tur e . T he De fe nd a nt t e sti fi e d that he wa s un able to p a y his fe e s b e c a us e he ha d to pa y c hil d support and other

bills.
Reg arding missing cur few calls, the De fenda nt stated that he was living with his cousin and, if his c ou sin wa s o n th e ph on e , “ sh e wo uld n’ t cli ck ov er.” He te sti fi e d th a t he wo uldc a ll M s. Willi a ms b a c k a nd , s ome tim e s, sh e wo uldno t a ns we r h is ca ll. He c la ime d tha t this happ e ne d a t le a st four times. Ac cording to the Def endan t , “I c al l ed her

numerous times, and she told me to stop calling her

. ” T h e De fe n dant submitted that he was home e very time she ca lled and that no one phy sically

came to the residenc e to see if he wa s home.

The De fenda nt acknowle dg ed that he ha d previously come to c ourt to addre ss the alleg ation of alc ohol use in April of 2005. The Defendant denied that he was “dirty ” in J uly of 2005, mea ning that he had not taken ill eg al drugs. The De fenda nt asserte d that he ca lled “Steps House” but that he did not qualify

for plac ement in this prog ram be cause he had not f ailed a dr ug test.

He a lso a d mi tt e d th a t h e h a d s to p p e d r e p o r ti n g to M s

. Wi ll iams b y Ju ly o f 2 0 0 5

. The De fe nd a nt sta te d tha t he fe lt tha t CAPP emp loy e e s “ne ve r g a ve [him ] a c ha nc e ” a nd the y jud g e d h im
on his app e ara nc e —g old te e th a ndbr a ids . H e state d th a t he didno t c a ll M s. Willi a ms a g a in b e c a us e he ha d a ne wb or n s on , w ho wa s h a vin g tr ou ble in the ho sp ita l, andhe didno t w a nt t o g o to ja il.

The Def endant testified that he could find a new place to live, if require d to do s o b yt he court. The Def

endant al s o as s u re d that, if he we re r eturne d to CAPP , he would comply with the conditions of the prog ram.

On cr oss-examination, the Defe ndant denied that he drank four wine cooler s in April of 2005 and stated tha t he only

drank a “slushy drink” that he was uncertain whether contained a lcohol. The De fe n d an tco n t en d ed t h at h e “ wa s d o i n g co m m u n i t y s er v i ce ” an d t h at “b y M ay[ h e] wa s wo rk i n g”T h e p re se n te n c e re p o rt is no t i n c lud e d in the re c o rd o n a p p e a l. 1

-4- for the “ temp service ” with variable hours. He testified that he ha d a total of thr ee ch i l d re n

. The Def endant a lso stated that he stopped working shortly afte r Jul y of 2005 bec ause he “thoug ht they
wer e g oing to c ome to [hi s] j ob and g et [him ].”

At the c on c lus ion of the pr oo f, the tr ia l c ou rt re vo ke d the De fe nd a nt’ s p la c e me nt i n CA PP
a ndre ma nd e d h im t o th e De pa rt me nt o f C or

re c tio n, fi nd ing a s f

oll ow s:
THE COURT: . . . [The Def endant] is a

relatively y oung man. I

g uess, what 21 now? J ust turned 21?

TH E D EF EN DA NT : Rig ht.

TH E CO UR T: B ut I ’m

loo kin g a t th e pres e nte nc e re po rt he re , a ndhis 1 juvenile re cord starts at ag e 12 . . . .

The fa cts in this case are that he was plac ed on CAPP last fall, in November. B y the 23 rdof

that mo nth—I thi nk he wa s pla c e d on, ma y be , the 18 th? On the 18 th h e wa s place d on CAPP . By the 23rd of N ovember , that same month, he picke d up—I signe d a war

rant on him f

or failing to be truthful with his pro b at i o n o fficer, failing to keep his cur few , failing to participate in t h e day reporting c enter

and the other CAPP activities.
We picked him up. We had a he aring . He s ubmitted to the violation on Dec ember

2nd. I order ed him to serve six mont hs in custody and told him I

was g oing to plac e him back on CAPP after that period of time.

Wha t e ve ry

bo dy ha s mi sse d h e re is t

hat in F e br

ua ry we let [the De fe nd a nt] g o to Centerpointe, and he stay ed at Cente rpointe for a period of time betwee n Fe bruary 23rd and Ma

rch 16th. And then he was place d back on the CAPP prog ram
on the 8th da y of Ap ri l 20 05

. F ive da y s la te r, on the 13 th o f A pril, I sig ne d a wa rr a nt, t h e a l l e g a t i o n b e i n g t h a t

— t h a th e ’ d b e e n u s i n g a l c o h o l , a n d a g a i n , f a i l i n g t o c o m p l y, failing to be truthful and make a full re port to his case ma nag er.

We left h i m o n

. W e told him to go to a ha lfway house. Hedidn’t g et in a halfway house.

I don’t believe any

body at a h al fway

house told y ou y ou didn’t have a problem that re quired y ou to be there

.
An oth e r thin g I ha d sk ipp e d be fo re is that ba c k in No ve mbe r w e tol d h im t o g o to B oo t Str aps , a ndhe c a me in a nd re po rt e d he did n’ t wa nt to g o to B oo t Str aps

.-5-

He ’d ha ve his la wy e r in co urt abo ut that. So he ne ve r g ot in a ha lf way ho us e , d e sp ite be ing tol d to do that.

I c re dit the te st im on y

of Ms. Willi a ms that he ne ve r k e pt any fu ll- tim e employ ment. He wo rk ed o n a very sporadic ba sis. He didn’t report on a re g ular b a s i s

. H e d i d v e r y l i t t l e b i t

— v e r y l i t t l e c o m m u n i t y s e r v i c e , m i s s e d s i x c u r f e w s , s a ys he ca lled in. You know, she say s on one occ asion he c alled bac k on the 27th.

He ha d a positive sc ree n in June, but the y didn’t test it for methamphetamine. I n J uly that he we nt in, he was scre ened. They told him he wa s positive for coc aine,
a ndhe ran o ut o f the C AP P off ice

. No w, le t’ s se e . Wh a t c a n w e inf e r f ro m th a t? That he w as cle an, and he just—he just decided to r un out? I don’t think so. I

think he wa s dirty

for c ocaine

. He knew he was dirty for cocaine. He knew he was g oing to ge t picked up, g o to jail, and he took off. H aven’ t seen him since. Ha sn’t reported since last Jul y

.
You’ve earned y our rig ht to do y our eig ht y ear s in the state penitentiary

. . .

.
An orde r of revoc ation was enter ed on Marc h 15, 2006. I t is from this order that the De fenda nt now
app e a ls.

AN AL YSI S

The De fenda nt contends that the evidence adduce d at the hea ring did not support revocation of his se nte nc e . Sp e c if

ic a lly , th e De fe nd a nt a

rg ue s a s f oll ow s:

I n the pr esent c ase, the evidenc e wa s not sufficient to prove that [t he D] efen dan t w a s n ot p re se nt a s r e qu ir e d at ho me du ri ng c ur fe w h ou rs , o r that hi s failure to pay

fee s was willful. The e vidence was not suffici en t t o p ro v e that [ the D]efenda nt’s fai l u re t o maintain full-time employ ment was willful or that he had willfullyviolated the terms of his alternative sentenc ing other than to have stopped reporting. Given the rela tively minor nature of the alleg ed violations, the trial court should have c onsidered le ss ext reme options than service of a prison sentence

. A trial judg e is vested with the discretionary authority to revoke probation if a pr eponder ance of the e vidence establishes that a defe ndant violated the c onditions of his or her probation. Tenn. Code Ann. §§ 40-35- 310, -311(e ); State v. Shaffe r, 45 S.W.3d 553, 554 (Tenn. 2001). “T he proof of a pr ob a tio n viol a tio n ne e d not be e sta bli sh e d be y on d a re a so na ble do ub t, but it is suf

fi c ie nt i f i t allows the trial judg e to make a conscie n t i o u s an d i ntellige nt judgment.” State v. Har kins, 811 S.W .2d 79, 82 (Tenn. 1991)

.-6-

When a probation revoc ation is c halleng ed, the appellate courts have a limit ed s co p e of revie w. This Court will not overturn a trial c ourt’s re vocation of a defe ndant’s probation absent an abuse of discretion. Shaff

er, 45 S.W.3d at 55 4

. For an appe llate court to be war rante d in finding that a trial judge abused his or her discretion by revoking probation, “the re must be no substantial evidenc e to support the conc lusion of the trial court that a violation of the c onditions of probation has occ urre d.” I d.

The e vidence contained in the record supports the t rial court’s finding s that the Def endant vio la te d th e c on dit ion s of CAPP an d furthe r sup po rt s the tr ia l cou rt ’s c on c lus ion that CA PP sh ou ld be re voked

. The De fe nd a nt a dmi tte d th a t he didno t c omp ly wi th a ll o f the c on dit ion s o f C APP , s p ec i fi callyfailure to report to his ca se mana g er. This failure is not excused by the Def endant’ s
a sse rt ion that CA P P employ e e s “ ne ve r g a ve [him ] a c ha nc e ” or jud g e d h im b a se d u po n h is appea ranc e.

Moreove r, Ms. Wil liams testified that the Def endant violated the conditions of CAPP by failing to maintain active em p l o y m ent, fa iling to complete c ommunityservice , failing to attend tr e a tme nt g ro up s, a nd mis sin g c ur fe w. Ms. Willi a ms te sti fi e d th a t, i n A pril o f 2 00 5, the De fe nd a nt, who was unde rag e, dra nk four wine cooler s and t h at , i n J u ly of 2005, the De fenda nt smelled of alcohol. Af

ter the A pril incident, the De fenda nt appea red be fore the court, and the trial court ordere d him to go to a ha lfway h o u s e, wh i ch the De fenda nt failed to do. The trial court a ccr edited the testimonyof Ms

. Wil liams that the Defenda nt used alcohol a nd thus violated the laws of the United States and thi s St a te

. T h e c r e d ib il it y o f w it n e s s e s is to b e d e te r mi n e d b y th e tria l c o u r t. St a te v. Mitchell, 810 S.W .2d 733, 735 (Tenn. Crim. App. 1991). Additionally , there is sufficient evide nce in the rec ord to support the conc lusion that the lack of a ny pay ment of the fe es and c ost s and the failure to maintain employ ment wer e choices made by the Def endant, a s opposed to circ umstances f o r c e d u p o n h im

. Se e St a te v

. Pe rr y E u g e n e Wa ll a c e , N o

. 0 1 C0 1

- 9 3 0 6

- CC

- 0 0 1 7 1 , 1 9 9 3 WL 495293, at *3 (Te nn. Crim. App., Nashville, Dec . 2, 1993) (c itation omit ted).

Th e re c or d a lso re ve a ls th at the D e fe nd a nt w a s f ull y inf orme d o f the re qu ir e me nts of his CAPP sentenc e and the conseque nces of failing to me et these require ments. The De fenda nt has bee n throug h at least one prior re vocation proc eeding and g iven more tha n one “se cond” c hance at serving his tim e under

a suspende d sentenc e. De spite repe ated attempts by the trial court to rehabilitate the De fe n d an t , t h e D ef

en d an th as co n s i s t en t l y fa i l ed t o m ee tt h e r eq u i re m en t s o f a l t er n at i v e s en t en ci n g. Acc ording ly , we c onclude that the trial court ne ither er red nor abused its di scre tion in revoking the Def endant’ s alternative sentenc e and or dering the re mainder of h i s s en t en ce be serve d in the De pa rt me nt o f C or

re c tio n. Th is i ssu e is w ith ou t me ri t

CO NC LU SION Th e r e c o r d r e f

l e c t s t h a t t h e tr i a l c o u r t m a d e a c o n s c i e n t i o u s a n d i n t e l l i g e n t j u d g me nt t o revoke the Def

endant’ s alternative sentenc e and or der r einstatement of his e ight- y ear sentenc e in the Depa rtment of Corre ction. The judg ment of the Knox CountyCriminal Court is aff irmed.-7- ______________________________ DAVID H. WELLES, J UDGE