### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE A ssi gne d on Br ie fs A pr il 7, 200 4

STA TE OF TEN NES SEE v. CH AR LES E LDR IDGE

Direc t Appeal from the Cr im inal Cou rt for P utnam C ounty

No. 02-0322 Lillie Ann S ells, Jud ge

No. M2003- 01771-CCA -R3-C D - F iled April 20, 2004

The de fenda nt appea ls the revoc ation of hi s probation, ar g uing the re w as no substantial evidenc e he violated the ter ms of his probation, the trial court erre d in allowing his probation of fice r to testify that h e f a il e d a d ru g s c r e e n , a n d th e r e in s tate me n t o f h is o r ig in a l s e n te n c e r e s u lt e d in to o h arsh a punishment under the c ircumstance s of hi s case

. Ba sed on our r eview, w e af firm the judg ment of 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

A L AN E. G L EN N , J ., delivere d the opinion of the court, in which G AR Y R. W ADE , P.J ., and R O BERT W. W EDEMEYER , J ., joined.

David Ne al Br ady
, District Public De fende r, and H. Ma rshall J udd, Assistant Publ ic Def ender , for the appe llant, Charles Eldridg e.
Paul G. Summers, Attorney Gene ral a nd Reporter ; Thomas E. Wil liams, I I I , Assistant Attorney Gene ral; Will iam Edwar d Gibson, District Attorney Gene ral; a n d Be njamin W. Fann, Assistant District Attorney

Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

On Oc tob e r 2 9, 20 02 , th e de fe nd a nt, Cha rl e s E ldridg e , w a s c on vic te d b y a Put na m Co un ty Criminal Court juryof si mple possession of m arijuana and viol ation of t he im plied consent law . He was subseque ntly

sentenc ed by

the trial court to eleve n months, twenty -nine da y s, with the trial court placing him on supervised proba tion and suspending all but thirtyday s of the sente nce, w hich wer e order ed to be se rv ed o n we ek ends in the county jail. Although a

list of the conditions of the de fe nd a nt’ s p ro ba tio n is no t in c lud e d in the re c or d be fo re thi s c ou rt , he wa s a pp are ntl y re qu ir e d to submit t o reg ular drug scre ens.-2-

On April 12, 2003, a pr obation violation warra nt w as issued ag ainst the defe ndant, alleg ing that he ha d te ste d p os iti ve fo r m ari jua na on Ap ri l 4, 20 03
, a ndha d b e e n o rd e re d to re turn o n A pr il 7, 2003, to pay the conf

irmation fee to send his urine sample to the labor atory but had not returne d. At the June 17 , 2 00 3, pr ob a tio n v i o l at i o n h e ari ng , th e de fe nd a nt’ s p ro ba tio n o ff ic e r, Mic ha e l Wr ig ht, testified that the def

endant wa s place d on probation on Dec ember 13, 2002. Two months later, on Fe bruary 13, 2003, the def

endant wa s scheduled f

or a dr ug scre en but re fused to pr ovide the urine

sa mpl e , s ta tin g that he wa s u na ble to d o s o b e c a us e of

a me dic a l c on dit ion . Wr ig ht t e sti fi e d h e tol d the de fe nd a nt h e c ou ld r e turn w ith a do c tor ’s no te , b ut o the rw ise , h is r e fu sa l to su bmi t w ou ld constitute a violation of his probation. He sa id the defe ndant l ater returne d with a note stating that he had g one to the doctor ’s of fi ce, but ha d not been se en by a doctor . Consequently , on Fe bruary 24, 2003, Wright issued a violation war rant for the defendant’s refusa l to submi t to the drug scre en.
Wright testified the defe ndant tested positive f or marijuana

on a fie ld test administered on April 4, 2003. He sa id he informed the d ef en d an t h e woul d have to se nd the field test to the labora tory

for c onfirmation, that the def endant wa s responsible for the $35 confirma tion f ee, and that his re fu sa l to pa y

wo uld re su lt in a

vio la tio n o f p ro ba tio n. He sa id the de fe nd a nt n e ve r r e turne d to
pay the fe e, and a probation violation r eport was issued on that basis. Wright testified a n additional
pr ob a tio n v iol a tio n r e po rt wa s is su e d on the de fe nd a nt on Marc h 20, 20 03 , ba se d on his fa ilu re to

re po rt on F e br ua ry 28 , 2 00 3, fo r h is w e e ke ndse rv ic e a t th e ja il.

On cr oss-examination, W rig ht testified the def endant br oug ht him a doc tor’s note a fter the violation report base d on his failure to submit to the drug scre en was issued. The note stated that the defe n d a n t h a d “ u r in ar y

s y mp to ms ” b u t d idn o t e la b o r a te ab o u t th e n a tu r e o f h is p r o b le m. Wrig ht

sa id h e wa s a wa

re of “ a bo dy lic e pr ob le m” a t th e ja il, bu t hi s un de rs ta nd ing fr om c on ve rs a tio ns wi th jail officials wa s that it was not the policy of the jail to turn an individual with body lice aw ay from

se rv ing we e ke ndtim e , b ut i ns te a d to re mov e the ind ivi du a l f ro m th e g e ne ra l popu la tio n. Wri g ht s a id
t h e d e f e n d a n tt o l dh i m a tt h e t i m e h e r e q u e s t e d t h e l ab o r a t o r y c o n f i r m a t i o n f e e , w h i c h w a s a

F r i d a y, that he did no t ha ve the mon e y

. He wa s fa ir ly c on fi de nt he ha d tol d the de fe nd a nt he c ou ld b ri ng his
money the following Monday ; howeve r, i t was possible he mig ht have sa id the following day . He acknow ledg ed the de fenda nt passed drug scre ens on May 15 and June 5, 2003.

I n r e sp on se to q ue sti on ing by the tr ia l c ou rt , Wr ig ht te sti fi e d tha t th e de fe nd a nt e xpla ine d h is failure to return with his c onfirmation fee at his ne x t r eport date by stating that he had not had the
money . Howeve r, the de fenda nt chang ed his story by the foll owing report date, stating that Wright had told him to return the following day but tha t the office had been closed when he had shown up on Saturday

to pay the fe e.

The de fenda nt testified he wa s experiencing urinary trac t pr oblems, in the form of a kidney stone, on the day he failed to submit his urine sample. He said he went to his d o ct o r’ s o ff i ce imm e diate ly

a ft e r l e a vin g the pr ob a tio n of fi c e , bu t w a s u na

ble to s e e the do c tor

un til app ro xima te ly
two wee ks later, whe n he wa s treate d for his problem. I n support of his claim, the def endant

su bmi tte d a sta te me nt fr om the “ L ivi ng sto n Clin ic ,” da te d F e br ua ry 25
, 20 03 , w hic h r e fe rr e d to hisW rig h t i n fo rm e d the trial c o u rt tha t t h e d e fen d a n t ha d ne v e r sh o w n him this sta te m e n t. 1

-3- ha vin g pa sse d a

kid ney st on e on F e br

ua ry 15 , 2 00 3. With re sp e c t to his fa ilu re to r e po rt fo r h is 1

wee kend jail servic e, the defe ndant t estified he had telephoned t he jail and rece ived per mission from “Matt F a r me r ” to b e ab s e n t th a t w e e k e n d b e c a u s e h e h a d b o d y li c e

. A s f o r h is f a il u r e to p aythe confirma tion fee f

or sending his urine sample to the l aboratory , the def endant testified tha t Wright told him t o return the next day and that he did so on five separ ate occa sions, only to find the offic e closed e ach time. He testified he did not return on Monday beca use Wright ha d “spec ifically stated tomorrow,” and “[t] omorrow whe n [he] went to school . . . mea ns the following day , not three or four da y s later.”

The trial court found by a preponde ranc e of the evidenc e that the de fenda nt had violated the terms of his proba tion by failing to r eport for his w eeke nd jail se rvice and by failing to pay the fe e to have his A pril 4, 2003, drug field test sent to the labora tory for c onfirmation. Acc ording ly , the trial court revoke d the defe ndant’s probation and orde red tha t he serve his origina l eleven- monthtwenty -nine-day

sentenc e in jail, with cre dit given f or time alre ady

serve d.

AN AL YSI S

The de fenda nt arg ues that substantial evidence wa s not presente d to show he violated the terms of his proba tion, the trial court er red in a llowing Wrig ht to offe r pre judicial testimonythat he failed his drug scre en, and f ull revocation of his probation was unduly harsh “conside ring the nature of the vio la tio n a ndDe fe nd a nt’ s e xpla na tio n. ” Th e Sta te arg ue s that the tr ia l c ou rt a c te d wi thi n it s dis c re tio n in re vo kin g the de fe nd a nt’ s pro ba tio n an d r e ins ta tin g his or ig ina l se nte nc e . We a g re e wi th the State.

A trial court is g rante d broad authority to revoke a suspende d sentenc e and to r einstate the orig inal sentenc e if it finds by the pre pondera nce of

the evidenc e that the de fenda nt has violated the
te r ms o f h is o r h e r p r o b a ti o n a n d s u s p e n s io n o f s e n te n c e

. T e n n

. Co d e A n n

. § § 4 0

- 3 5

- 310, -311 (2003). The revoc ation of probation lies within the sound discretion of the tr ial court. State v. Ha rkins , 8 11 S.W. 2d79 , 8 2 ( Te nn . 1 99 1) ; State v. Stu bb le fi e ld, 95 3 S. W.2 d 2 23 , 2 26 (T e nn . Cr im. Ap p. 19 97 ); Sta te v. Mit c he ll, 81 0 S.W. 2d 73 3, 73 5 ( Te nn . Crim. Ap p. 19 91 ). To sh ow a n a bu se of discre tion in a probation revoc ation case , “a defe ndant must de monstrate ‘that the re cord c ontains no substantial evidence to support the conclusion of t he trial judg e that a violation of the conditions of proba tion has occur

red.’ ” State v. Wall, 909 S.W .2d 8, 10 (Tenn. Crim. App. 1994) (quo t i ng State v. Delp, 614 S.W .2d 395, 398 (Tenn. Crim. App. 1980) ). The pr oof of a probation violation need not be established bey ond a reasonable doubt; it is sufficie nt if it allows the trial court to make

a c o n s c ie n ti o u s a n d in te ll ig e n t ju d g me n t. H ark in s , 8 1 1 S. W. 2 d a t 8 2 ( c it in g St a te v

. M il ton, 673 S.W .2d 555, 557 (Tenn. Crim. App. 1984) ). We revie w this issue, theref ore, f or an a buse of discretion.

I n support of his arg ument that there was no substantial evide nce to support the r evocation of his pr ob a tio n, the de fe nd a nt c ite s h is o wn te sti mon y that he re c e ive d p e rm iss ion fr om a ja il-4-

administrator to miss his weekend in jail due to his body lice problem. Howeve r, the de fenda nt’s probation off

icer testified that jail of

ficials informed him that it was not the ja il’s policy to turn awa y an individual with body lice fr om serving his weeke nd sentenc e. The office r additionally testified that the def

endant ne ver pa id the require d fee for se nding his urine sample to the laboratory for confirma tion, despite being informed that failure to do so would result i n a violation of proba tion. I n b oth its or a l f

ind ing s o f fa c t and in its wr itt e n ord e r re vo kin g pr ob a tio n, the tr ia l c ou rt sp e c if ic a lly noted that it did not find the defenda nt’s testimonycre dible. At the conc lusion of the hearing, the trial court state d:

All rig ht, well [Defenda nt] , the court finds by a pre pondera nce of

the

e vid e nc e that y ou vio la te d y ou r p ro ba tio n in thi s c a se . Y ou kn ow , if there was only one part of this that was misunderstood, I would g ive
y ou the bene fit of the doubt. But I ’ve sat here and wa tched y ou and lis te ne d a ndI

te ll y ou wh a t, we ll I make the fi nd ing that y ou fa ile d to
report to s er v e y our jail sentenc e as or dere d by this court. And as these law y ers know and I ’m sure tha t most defendant’ s [s ic] know and I made it very

cle ar to y ou when we did the sentenc ing he aring and the co n ditions of y our proba tion that y ou report to serve y our

se nte nc e a s o rd e red by

thi s c ou rt

a nd I fi ndthat y ou fa ile d to do so and that y ou’ve violate d y our proba tion.

[D e f e n d a n t]
, I a ls o f

in d th a t [D e f

e n d a n t’ s ] te s ti mo n y is not

c re dible. I

fi ndthe of

fi c e r’ s te sti mon y

to b e c re dib le . I

fi ndhis
te sti mon y no t c re dib le a ndthi s is wh e re y ou ra n in to p ro ble ms, [Defenda nt] . When y ou testified t hat t his office r, first of all Ibelieve the of fi c e r. He tes tifie d th a t y ou fi rs t c a me in the re a ndsa id w e ll I d id n ’ t c o me b a c k

w ith th is th irty

f iv e d o ll ar s b e c a u s e I

d id n ’ t h a ve thirty five dollars a nd then he sa id that y ou chang ed y our story from what y ou said here today that he told y ou that it w as on the wrong date. You told me that, y ou testified under oath y ou went back f ive times on Saturday

and on Monday

y ou didn’t bother to g o back onc e [si c] single tim e. And I find that incre dible and I find it not credible. I find it not credible.

T h e prepondera nce of

the evidenc e supports the trial c ourt’s finding that the def endant violated the ter ms of his probation both by his failure to report f or his jail service and by

his failure to pay the fe e to send his urine sa mple to the labora tory for testing

.

The de fenda nt also arg ues that the trial court erre d by allowing his probation office r to testify that he fa iled his drug field test by testing positi ve for marijuana . The State re sponds by arg uing tha t

a ny e rr or in a dmi tti ng the te sti mon y wa s harmle ss be c a us e the de fe nd a nt ha s not es ta bli sh e d tha t hi s

revoc ation was ba sed on t h e p o s itive field test or that he w as pre judiced by

the admission of the evidenc e. We ag ain ag ree with the State.-5-

For this arg ument, the def

endant r elies on Tenne ssee Code A nnotat ed s ec t i o n 40-35- 31 1( c )( 1) (2 00 3)
, wh ic h li sts the re qu ir e me nts fo r a la bo ratory re po rt of a de fe nd a nt’ s d ru g te st t o be admitted in a proba tion revocation hearing in lieu of testimony by the technic ian who per formed the test. No laboratory

report was pre pare d here , much less admitted, bec ause the defe ndant fa iled to submit the fe e re quired to send his urine sa mple in fo r l aboratory testing. The defe ndant’s probation off

icer explained to the trial court that the probation office’ s proce dure w as to send urine samples to the laboratory , thus requiring pay ment of the c onfirmation fe e, only when the r esults of

a de fe nd a nt’ s f

ie ld t e st w e re po sit ive . I n it s ord e r re vo kin g pr ob a tio n, the tr ia l c ou rt fo un d th a t, i n

a dd iti on to h is f

a ilu re to r e po rt

to se rv e his ja il tim e , the de fe nd a nt ha d vio la te d h is p ro ba tio n b y his failure “ to cooperate wi th h is pr ob a tio n of fi c e r re g ard ing a Ap ri l 4, 20 03
, dr ug fi e ld t e st. ” (e mph a sis

a d d e d )

. N o t ab l y, t h e t r i a l c o u r t d i d n o t f i n d t h a tt h e d e f

e n d a n th a d v i o l a t e d h i s p r o b a t i o n b y failing the field drug test. We c onclude, there fore
, that the trial court did not err in admitting the off icer ’s
te sti mon y abo ut the po sit ive fi e ld te st re su lts
, wh ic h e xpla ine d w hy the de fe nd a nt w a s r e qu ir e d to
pay the conf irmation fee for se nding his urine sample to the laboratory for testing

.

F ina lly , th e de fe nd a nt a

rg ue s th a t a

re ins ta te me nt o f h is o ri g ina l se nte nc e re su lts in t oo ha rs h a punishment g iven the nature of his violation. We r espec tfully disag ree . The trial c ourt is gr anted broad discr etion to revoke a def endant’ s probation and r einstate the origina l se ntence upon a finding by a pre pondera nce of

the evidenc e that he violate d the t erms of his probation. See Tenn. Code Ann. §§ 40 -3 5- 31 0, -3 11 (2 00 3)

. Th e de fe nd a nt vio la te d th e te rm s o f h is p ro ba tio n n ot o nly by fa ili ng to pay to ha ve his urine sample sent to the labora tory for testing, but a lso in a more fundame ntal way by failing to report f

or his wee kend jail servic e, which w as a condition of his se ntence that the trial
court a ppare ntly made a bundantly clea r to him at sentencing

.

CO NC LU SION

We find no abuse of

discretion by

the t rial court in revoking the def endant’ s probation and

re i n s t at i n g h i s o ri gi n al s en t en ce

. Ac co rd i n gl y , we af fi rm t h e j u d gm en to f t h e tr i al co u rt

. Al t h o u gh the rec ord ref

lects that the defe ndant is fre e on a $1000 bond, w e note that the tr ial court e ntere d an order on J une 18, 2003, setting the defe ndant’s appe al bond at $3000. The ref ore, in the e vent the defe ndant indicates an intention to file an application for permission to a ppeal t o t h e T en n essee Supreme Court, he ma y

be admitted to bail in the amount of $4000.

___________________________________ AL AN E. GL

ENN, JUDGE