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

Briefs O ctober 16, 2002 STATE OF TENNESSEE v. JOH N WINSTON McMURRY Direct Appeal from the Criminal Court for Sumner County No. CR 180-1999; CR 482-1999 Jane W. Wheatcraft, Judge

No. M2001-03117-CCA-R3-CD - F iled March 19, 2003

The defenda

nt’ s probati on was revoked after his house was sear ched and a twelve-gaug e shotgun was found inside. The defendant contends there was insuff icient evidence to revoke his probation. The de fendant

contendsthe rule s of proba tion and a police r eport we re improp erly

admit ted int o evidence. Because the trial court is only require d to find a violation of probation by a pre ponderance of the evidence, we affirm the trial cour t’s revocation of probation. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
J OHN E VERE TT W IL LI AMS , J., deliver ed the opinion of the

court, in whic h D AVID G. H AYES and J ERRY L. S MITH , JJ., joined.
Da vi d R . H ow ar d, Ga ll at in , T en ne ss ee , f or th e a pp el la nt , J oh n W in st on Mc Mu rr y. Paul G. Summers , Attorney Gene ral and Reporter; Jennifer L . Bledso e, Assista nt Attorne

y General ; Lawrence Ray Whitley , Dist

rict Attorney General ; and Dee Gay , Assistan

t District Attorney Genera l, for the appellee, State of Tennessee.

OPINION The d efendant, John Winston McMurry, pled nolo contender e to two counts of s ale of a Schedule II drug, cocaine less than

.5 gra ms, Class C f

elonies. On June 12, 2000, the defendant was sentenced as a Range I

I multiple offender to six years on each count, to be served consecutively , and was placed

on probation. On August 29, 2001, a probation violation warrant was issued ag ainst the defendant following his arrest for Unlawful Carry ing or Po ssession of a Weapon as a Convicted Felon, a Class E felony. Af ter a preliminary

hearing in General Sessions Court, the defendant was bound over tothe Sumner County Grand Jury . A probation violation hearing was held before the Grand Jury

met, at which time the defendant’s probation was revoked. The Sumner Count Grand Jury returned a no true bill after the defenda nt’s probation was revoked. The def endant contends-2-

there was insuf

ficient e vidence in which to revoke probation. The defendant contendsthe Rules of Probation and a police report were improperly admitted into evidence. Analysis A trial court may r

evoke probation upon a finding by a preponderance of the

evidence that the def endant violat ed the conditions of his probation. Tenn. Code Ann. § 40-35-311(d) (1997). This Court will n ot di sturb the decision of a trial court to revoke probation absent a f inding of an abuse of discretion. To find anabuse of discreti on, there

must be no substantial evidence to support the conclusions of the trial court that a violation of the terms of probation has occurr ed. See State v. Shaffer , 45 S .W.3 d 553, 554 (T enn. 2 001) ( citi ng Stat e v. Har kins , 81 S.W.2d 79, 82 (Tenn. 1991)). The probation violation warrant stated that the defendant violated “Rule #3: Offender was in possession of a firearm and ammunition.” Officer Don Bandy testified at the probation revocation hearing that while searching the residence of the defendant

and his brother, pursuant to a consent t o search giv en by the def

endant, he found a Remington model 1400 12-gaug e shotgun and one 12

- gauge round under

the couch in the living room. The defendant offe red no proof at the revocation hearin g. Because the trial court may find a violation of probation occurred if a preponder ance of the evidence exists, we conclude the finding of the trial court is supported by the testimony of Officer Bandy. SeeTenn. Code Ann. § 40-35-311(d). The defendant contends that Officer B andy should not have bee n allowed to introduce the police report of Sergeant Sorrells into evidence a t the revocation heari ng. The record reflec ts Sergeant Sorrells’ report included the defendant’s admissions that the gun be longed to him and that he purchased the gun from an ac quaintance. The decision to exclude or admit evidence is left to the discre tion of

the trial court. In reviewing such a decision, this Court may only disturb the trial court’s decision if there has been an abuse of discr etion. Stat e v. Dubos e , 953 S.W.2d 649, 652 (Tenn. 1997). We also recognize that hearsay evidence is admissible in a probation re voca tion hearing “so long as it is shown not to be so unreliable as to violate due process.” State v. Wade , 863 S.W.2d 406, 409-10 (Tenn. 1993). In the instant ca se, this evidence was shown to be reliab l e because Officer Bandy

searched the defendant’s home and located the gun

and ammunition. Officer Bandy knew Sergeant Sorrells interviewed the de fendant concerning

the gu n. We conclude the record does not indicate the trial court improperly admitted this evidence. The defendant argues the trial cour t abused its discretion in including the Rules of Probation in the record after the proceedings had come to a close. From the record, we conclude the trial court included the Rules of Probation to complete the record. The defendant wa s inherently put on notice that complian ce with

the criminal laws is a condition of probation. State v. Stu bblefield , 953 S .W. 2d 223, 225 (Tenn. Crim. App. 1997). Furthermore, a trial court may take

judicial notice of its own rules of probation. State v. Kenneth Lee Ke ndrick , 2002 Tenn. Crim. App. LEXI S 49, No. E2001- 00817-CCA-R3-CD, Sullivan County (Tenn. Crim. App. filed January 23, 2002, at Kn o xville).-3-

Therefore, we conclude thetrial court did not abuse its discretion by including the Rules of Probation into the record. Conclusion For the above reasons, we aff irm the judgments of the trial court.

___________________________________ JOHN EVERETT WILL

IAMS, JUDGE