IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs at Jackson March 5, 2024

STATE OF TENNESSEE v. NATHANIEL ISAAC HERRICK

Appeal from the Criminal Court for Sullivan County

No. S67099 James F. Goodwin, Jr., Judge

No. E2023-00984-CCA-R3-CD

The Defendant, Nathaniel Isaac Herrick, appeals from the Sullivan County Criminal 

Court’s probation revocation of his two-year sentence for drug-related convictions. On 

appeal, the Defendant contends that the trial court abused its discretion by revoking his 

probation and ordering him to serve the remainder of his sentence in confinement. We 

affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and JILL BARTEE AYERS, JJ., joined. 

Andrew Gibbons, District Public Defender; Mitchell A. Raines (on appeal), Assistant

Public Defender-Appellate Division; and Melissa G. Owens (at plea and revocation 

hearing), Assistant Public Defender, for the appellant, Nathaniel Isaac Herrick. 

Jonathan Skrmetti, Attorney General and Reporter; Johnny Cerisano, Assistant Attorney 

General; Barry P. Staubus, District Attorney General; and Amber Massengill, Assistant 

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

OPINION

On September 13, 2016, the Sullivan County Grand Jury indicted the Defendant for

three counts of the casual exchange of marijuana, two counts of the sale of more than onehalf ounce of marijuana, two counts of the delivery of more than one-half ounce of 

marijuana, two counts of possession of drug paraphernalia, and one count each of 

possession of more than one-half ounce of marijuana for sale or delivery, possession of 

clonazepam, and maintaining a dwelling where controlled substances are used or sold. The 

Defendant pleaded guilty as charged and received an effective two-year sentence, 

suspended to supervised probation.

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On September 19, 2019, a first probation violation warrant issued for the 

Defendant’s two positive drug screens, failure to report, and failure to attend counseling. 

The trial court revoked the Defendant’s probation and reinstated it after service of ninety 

days in confinement. 

On April 28, 2020, the Defendant’s probation officer submitted a probation 

violation report which stated that the Defendant had absconded. On May 4, 2020, a second 

probation violation warrant issued for the Defendant’s missing two home visits by a 

probation officer. The Defendant was arrested on the second warrant on April 5, 2023, 

almost three years later. 

At the June 7, 2023 probation violation hearing, Probation and Parole officer Cindy 

Brooks testified that the Defendant was placed on probation on March 16, 2018, that he 

performed well on probation for about one year, but that he failed to report to the probation 

office on July 18, 2019. She said that the Defendant also failed to report for a drug screen 

on July 23 and 24, 2019. She stated that on August 6, 2019, and September 10, 2019, the 

Defendant tested positive for a controlled substance. Ms. Brooks said that on August 6, 

2019, the Defendant was ordered to begin mental health counseling but that he failed to do 

so. Ms. Brooks said that a probation violation warrant issued on September 19, 2019, and 

that the Defendant’s probation was revoked and reinstated. 

Ms. Brooks testified that on December 19, 2019, the Defendant told his probation 

officer that he would be staying with his sister and provided his new address and contact

information. Ms. Brooks said that later a probation officer was unable to find the 

Defendant at his sister’s address. Ms. Brooks said that on February 26, 2020, the officer 

made “several” unsuccessful attempts to contact the Defendant by telephone. Ms. Brooks 

stated that the officer spoke with the Defendant’s sister on April 23, 2020, and that the 

Defendant’s sister confirmed the Defendant lived with her. The Defendant called the 

officer later that day. Ms. Brooks said that the probation officer instructed the Defendant 

to be available for a home visit on April 27, 2020, that the Defendant was not at the home 

on this day, and that no one in the probation office had seen or heard from the Defendant 

since April 23, 2020. Ms. Brooks said that a probation violation warrant issued and that 

the Defendant absconded for the next three years, until his arrest. Ms. Brooks stated that 

the Defendant violated the terms of his probation by failing to be present for a home visit. 

On cross-examination, Ms. Brooks acknowledged that the probation violation 

affidavit and warrant did not charge the Defendant with absconding. Ms. Brooks stated 

that although any contact between a probation officer and the Defendant should be 

contained in the violation report, it was possible an officer did not make a notation. Ms.

Brooks agreed that the first probation violation was resolved in December 2019, at which 

time the Defendant was ordered to serve ninety days in confinement before being reinstated 
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to probation. Ms. Brooks stated that the current probation violation warrant charged the 

Defendant with missing home visits. 

At this point in the hearing, defense counsel noted that the Defendant had been 

charged with failing to be present for a home visit and not for absconding. In response, the 

State indicated that it could request an additional probation violation warrant for 

absconding, if necessary. Without specifically addressing the notice issue, the trial court 

proceeded with the hearing. Defense counsel made no additional objections or arguments, 

and the Defendant did not raise the issue of notice of his absconding in this appeal.

The Defendant testified that he was living with his sister and missed the home visits 

because of work-related obligations. He stated that he had been present for some home 

visits and that he was aware of his missing only the April 2020 home visit. The Defendant 

said he performed construction work, mowed yards, and worked as a mechanic. 

The Defendant testified that he did not contact his probation officer after missing 

the April home visit because, “[he] figured [he] did have a [w]arrant and plus COVID and 

stuff was going on from what [he] hear[d] they was turning people away.” He said that he 

was not “hiding” from probation officers and that he was “at [his sister’s] home if they 

wanted [him.]” He said that he was not charged with any new offenses and that, if he 

received probation, he “wouldn’t mess up again.” 

On cross-examination, the Defendant testified that probation officers made home 

visits every couple of months. He said some visits were announced by a telephone call 

only hours before and others were scheduled several days in advance. He said that he had

also reported in person to the probation office once or twice a month. The Defendant stated 

that he had returned the probation officer’s calls, although the officer’s notes did not reflect 

this fact. He acknowledged that an officer told him to expect a home visit on April 27, 

2020, and that he told the officer he would be at work and unable to be home. The 

Defendant acknowledged that there was no record of his contacting any probation officer 

after April 2020 until his arrest in April 2023 and that he chose not to report during that 

time. 

The trial court determined that the Defendant violated the conditions of his 

probation by failing to be present for a home visit. The court found that the Defendant was 

aware of the home visit on April 27, 2020, that he failed to be present or contact a probation 

officer, and that he made “no effort whatsoever to report” for probation after that time. The 

court further found that the Defendant absconded from supervision when he failed to report 

to his probation officer for three years because he assumed a probation violation warrant 

had been issued. The court commended the Defendant for maintaining employment but 

noted that the “most basic rule is that you have to report.” The court found that confinement 

was necessary to avoid rewarding the Defendant for “laying low until the expiration date 
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of his sentence” and, as a result, ordered the Defendant to serve his original two-year 

sentence in confinement. This appeal followed. 

The Defendant contends that (1) the trial court erred by concluding he absconded 

from supervision and (2) the court failed to consider the appropriate consequence for the 

violation pursuant to State v. Dagnan, 641 S.W.3d 751, 757 (Tenn. 2022). The State 

counters that the court considered all the appropriate factors and acted within its discretion. 

We agree with the State. 

“On appeal from a trial court’s decision revoking a defendant’s probation, the 

standard of review is abuse of discretion with a presumption of reasonableness so long as 

the trial court places sufficient findings and the reasons for its decisions as to the revocation 

and the consequence on the record.” Id. at 759. An abuse of discretion has been established 

when the “record contains no substantial evidence to support the conclusion of the trial 

judge that a violation of the conditions of probation has occurred.” State v. Delp, 614 

S.W.2d 395, 398 (Tenn. Crim. App. 1980); see State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 

2001); State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978). A finding of abuse of discretion 

“‘reflects that the trial court’s logic and reasoning was improper when viewed in light of 

the factual circumstances and relevant legal principles involved in a particular case.’” 

Shaffer, 45 S.W.3d at 555 (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

Tennessee Code Annotated section 40-35-311 (Supp. 2023) classifies violations 

into “technical” and “non-technical” violations. A technical violation “means an act that 

violates the terms or conditions of probation but does not constitute a new felony, new 

Class A misdemeanor, zero tolerance violation . . . absconding, or contacting the 

defendant’s victim in violation of a condition of probation.” Id. -311(g). If the trial judge 

finds, by a preponderance of the evidence, that the defendant has committed a nontechnical violation such as absconding, then the trial judge may revoke the defendant’s 

probation. Id. -311(e)(2). The graduated punishments for technical violations apply to 

court determinations made on or after July 1, 2021, but do not apply to non-technical 

violations. See 2021 Tenn. Pub. Acts ch. 409 § 27 (eff. July 1, 2021); see also 2022 Tenn. 

Pub. Acts ch. 1060 § 10 (eff. July 1, 2022).

If the trial court failed to memorialize its reasons for the revocation decision on the 

record, the appellate court may either conduct a de novo review, provided the record is 

developed sufficiently for such review, or it may remand the case to the trial court with 

instructions to make appropriate findings. Dagnan, 641 S.W.3d at 759.

When a trial court determines that a defendant’s probation must be revoked, the 

court must then decide upon an appropriate consequence. Id. at 757. A separate hearing 

is not required, but the court must address the issue on the record in order for its decision 
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to be afforded the abuse of discretion with a presumption of reasonableness standard on 

appeal. Id. at 757-58.

After revoking a defendant’s probation on a non-technical violation, the trial court 

may return a defendant to probation with modified conditions as necessary, extend the 

period of probation by no more than one year upon making additional findings, order a 

period of confinement, or order the defendant’s sentence into execution as originally 

entered. T.C.A. §§ 40-35-308(a), (c) (Supp. 2021), -310 (Supp. 2021), -311(e)(2). “In 

probation revocation hearings, the credibility of witnesses is for the determination of the 

trial judge.” Carver v. State, 570 S.W.2d 872, 875 (Tenn. Crim. App. 1978) (citing Bledsoe 

v. State, 387 S.W.2d 811, 814 (Tenn. 1965)).

The Defendant contends that the evidence is insufficient to establish that the 

Defendant absconded from supervision. The Defendant does not contest that he failed to 

be present for a home visit and, thus, violated a term of his probation. Specifically, the 

Defendant asserts that there is a distinction between “absconding” and “failing to report”

based upon Tennessee Code Annotated section 40-35-311 and that only a violation for 

absconding—a non-technical violation—would subject him to revocation. The State 

argues that the statutory distinction between technical and non-technical violations is 

inapplicable because that statute was not in effect at the time of the Defendant’s underlying 

offenses. 

A trial court’s application of the probation violation framework contained in

Tennessee Code Annotated section 40-35-311 is distinguishable from a court’s application 

of sentencing laws, where the court must apply the sentencing law in effect at the time of 

the underlying offenses. See State v. Saint, 284 S.W.3d 340, 347 (Tenn. Crim. App. 2008) 

(“[T]he sentencing law in effect at the time of the offenses was the proper framework for 

establishing the defendant’s sentences.”). Therefore, the court’s probation violation 

determination must be consistent with section 40-35-311, which was in effect at the time 

of the court’s violation determination. See State v. Jordan Isaiah Mosby, No. M2022-

01070-CCA-R3-CD, 2024 WL 380100, at *5 (Tenn. Crim. App. Feb. 1, 2024) (where the 

underlying offense was committed in 2013, the trial court must follow the dictates of 

T.C.A. § 40-35-311(e)(2) in revoking the defendant’s probation and ordering him to serve 

the remainder of his sentence in incarceration); State v. Gregory L. Nelson, No. M2023-

00311-CCA-R3-CD, 2023 WL 6843541, at *5 (Tenn. Crim. App. Oct. 17, 2023) (even 

though the underlying offense was committed in 2018, the trial court must follow the 

current dictates of T.C.A. § 40-35-311(e)(2) in revoking the defendant’s probation and 

ordering him to serve the remainder of his sentence in incarceration). But see State v. John 

Butler, No. W2023-00566-CCA-R3-CD, 2023 WL 8234319 (Tenn. Crim. App. Nov. 28, 

2023) (where the trial court held a revocation of judicial diversion hearing in 2023, this 

court found that the trial court, when sentencing the Defendant, should have applied the 
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probation revocation statute in effect at the time of the underlying offenses and not the 

provisions of T.C.A. § 40-35-311, which took effect July 1, 2021). In the present case, the 

court found by a preponderance of the evidence that the Defendant had absconded. 

Pursuant to section 40-35-311, absconding constitutes a non-technical probation violation 

for which the court can revoke the Defendant’s probation and order him to serve the 

remainder of his sentence in confinement. 

“Absconding” is not defined in the Tennessee Criminal Sentencing Reform Act of 

1989. See T.C.A. § 40-35-101 et seq. However, this court has defined “abscond” as “[t]o 

go in a clandestine manner out of the jurisdiction of the courts, or to lie concealed, in order 

to avoid their process. To hide, conceal, or absent oneself clandestinely, with the intent to 

avoid legal process.” State v. Fredrick Munn, No. W2022-00675-CCA-R3-CD, 2023 WL 

2607676, at *4 (Tenn. Crim. App. Mar. 23, 2023) (citation omitted). At the probation 

violation hearing, the Defendant acknowledged that he intentionally failed to report to or 

contact his probation officer in order to avoid being served with a probation violation 

warrant. Although the Defendant testified that he was “not necessarily” hiding from 

probation, the Defendant never reported to the probation office or made any effort to 

contact his probation officer for three years after failing to be present for a home visit in 

April 2020. As a result, the trial court found, by a preponderance of the evidence, that the 

Defendant absconded from supervision. The court did not abuse its discretion in this 

regard. 

The Defendant also contends that the trial court failed to consider the appropriate 

consequence for the violation and failed to place sufficient findings on the record to support 

its decision ordering him to serve his sentence in custody. See Dagnan, 641 S.W.3d at 757. 

The State argues that the record supports the court’s decision. We agree with the State. 

In support of his argument, the Defendant relies on State v. Arthur M. Stewart, No. 

M2021-00595-CCA-R3-CD, 2022 WL 1236982 (Tenn. Crim. App. Apr. 27, 2022), in 

which the defendant admitted that he had violated the terms of his probation and that he 

had submitted a falsified doctor’s note to the court. The trial court found the defendant 

evidenced a “level of deviousness” and revoked the defendant’s probation stating that, “Sir, 

I just can’t have folks submitting false medical documents. I just can’t do it. I’m going to 

have to revoke you. Sentence to serve.” Arthur M. Stewart, 2022 WL 1236982, at *2. On 

appeal, the defendant contended that the trial court failed to consider the appropriate 

consequence upon revocation, specifically alternative forms of punishment and the 

interests of justice. Id. at *3. This court concluded that

[t]he trial court was clearly concerned with the severity of the defendant’s 

deception in submitting a false medical document. However, from the record 

before us, we cannot determine whether the trial court took any other 

considerations into its calculus or whether the trial court, even implicitly, 
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considered the consequence imposed for the violation as a separate 

discretionary decision. We, therefore, remand for the trial court to place its 

reasoning for the consequence imposed on the record. 

Id. (citations omitted).

In the present case, the record reflects the trial court’s considerations regarding 

revocation. The supreme court in Dagnan noted that “relevant considerations [regarding 

the consequence of the revocation] might be, but are certainly not limited to, the types of 

things the trial court considered in this case: the number of revocations, the seriousness of 

the violation, the defendant’s criminal history, and the defendant’s character.” 641 S.W.3d 

at 759 n.5. Here, the court heard testimony regarding the Defendant’s probation history, 

including his past revocation. The court considered the Defendant’s conduct and stated on 

the record that after the Defendant’s failure to be present for a home visit, he made “no 

effort whatsoever to report” and, instead, “laid low,” fearing arrest. 

The record reflects that the trial court conducted an appropriate review of the facts 

and circumstances of the Defendant’s case, and we afford the court’s decision the 

presumption of reasonableness, in view of its having made sufficient findings on the record. 

The court considered the Defendant’s prior violation, his missing two home visits, and his 

failure to report for three years in ordering him to serve the remainder of his sentence as a 

consequence of his violation. The court did not abuse its discretion in revoking the 

Defendant’s probation and ordering him to serve the remainder of his original sentence in 

confinement. The Defendant is not entitled to relief. 

In consideration of the foregoing and the record as a whole, the judgment of the trial

court is affirmed.

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE