### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

STATE OF TENNESSEE v. ANDREW B. EDWARDS

Direct Appeal from the Criminal Court for Shelby County

No. 97-12105 W. Fred Axley, Judge

No. W1999-01095-CCA-R3-CD - Decided May 26, 2000

On May 26, 1998, the a

ppellant, Andr ew B. Edwards, pled guilty in the Shelby County Criminal Courtto the misdemeanor offense of assault. The trial court imposed a sentence of eleven months and twenty-nine days in the Shelby County Workhouse and suspended all but thirty days of the sentence, granting the appellant a ter m of pr obation. On November 16, 1998, the State filed a petition to revoke the appellant’s probationary sentence. Following a hearing, the trial court granted the State’s petition. The appellant now appeals the order of the trial court revoking his probation. Following a review

of the record an

d the parties’ br

iefs, we affirm

the trial court’s

judgment.

Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is affirme

d.

O GLE , J., delivered the opinion of the court, in which W ADE , P.J., and W ILLIAM S , J., joined.

Charles A. Sevier

, Memphis, Tenness

ee, for the appe

llant, Andrew B. Ed

wards.

Paul G. Summers, Attorney General and Reporter, J. Ross Dyer, Assistant Attorney Genera l, Julie Mosley, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Backgroun

d On November 16, 1998, the State filed a pet ition t o revoke the appellant’s probationary sentence onthe ground that the appellant had violated “the laws of the United States

or any State . . . ,” thereby viola ting a condition of h

is probation. Specifically, the State noted that the appellant had

been arrested on October 5, 1998, for aggravated assault. Pursuant to the State’s petition, the trial court conducted a probation revocation hearing on May 25 and 28, 1999. At the hearing, the State presented the testimony of Tiffany Walker, the appellant’s probation counselor. She confirmed that, during the appellant’s probationary period, he had been arrested for aggra vated assaul t. The State also presented the testimony of Sandra McClain, an employee of the She lb y County Criminal Court respo nsible for maintaining the court’s records. Ms. McClain confirmed that, on April 1, 1999, a Shelby County Grand Jury had indicted the appellant for committing the offense of aggravated assault on August 30, 1998.

### -2- Following the State’s presentation of proof, the appellant presented the testimony of several witnesses to the August 30, 1998 altercation. First, Joey Gaia testified that, on August 30, 1998, he was attending a

partywhen he and another guest, Eric Hall, began to fight. After the two combatants

inflicted several minor injuries upon one another, they decided to end the fight,

and Mr. Gaia and s everal friends

decided to leave

the party. At this po

int, the appellant

emerged from “

a crowd of people”

wielding a knife a

nd began to

walk toward one o

f Mr. Gaia’s fri

ends. Mr. Gaia recounted: I looked at [the appellant] and said, Hey, man, chill out, we’re leaving rightnow. And then next thing I know, he comes up, approaches me, and next thing I kno

w, I’m cut.

Eric Hall also testified on behalf of the appellant

at the probation revocation hearing and confirm ed that he attended the August 30, 1998 party. According to Mr. Hall, Mr. Gai a provokeda fist fight with him, after which fight Mr. Hall immediately left the party. As he left, he heard someone asking everyone to leave. Michael Boyd, another guest at t he party, testifie

d that, following the f

ight between Mr. Hall and Mr. Gaia, the appellant asked the combatants to leave. Accor ding to Mr. Boyd, Mr. Gaia refused to leave, and he and several friends began to advance towardthe appellant wielding broken beer bottles. The appellant then drew a knife and again asked Mr. Gaia and his

companions to leave. Mr. Gaia attempted to grab the appellant’s knife and was cut by the knife during th

e struggle. Blake

Atkins, yet anothe

r guest, also

testified that Mr.

Gaia was the aggressor during the confrontation between Mr. Gaia and the appellant. Finally, the appellant testified and confirmed Mr. Boyd’s and Mr. Atkins’ account of events on the evening of the party.

Following the parties’ presentation of proof, the trial court concluded that it was bound by the grand jury’s finding of pro babl e cause that the appellant committed the August 30, 1998 aggravat ed assault

and, accordingl

y, revoked the ap

pellant’s probat

ion. In reaching

this conclusion, the trial court relied upon, among other cases, Parton v. State, 455 S.W.2d 645 (1970). Finally, the trial court opined, “Frankly, from what I heard factually, . . . the grand jury did not improperly indict him for what he’s charged with . . . .”

II. Analysis The appellant contends that the trial court erred in concluding that it was bound by the grand jury’s finding of probable cause that the appellant committed the August 30, 1998 aggravated

assault. We ag ree. The cases cited by the trial court in suppo

rt of its conclusion

, in particular Parton
, 455 S.W.2d at 648, stand only for the proposition that a court may not dismiss an indictmenton the ground that there was inadequate or incompetent evidence before the grand jury
to support the indictment. See also State v . Gonzale s , 638 S.W.2d 841, 845 (Tenn. Crim. App. 1982). Rather, if the indictment is valid on its face, a trial court must proceed to a trial of the charge

on the merits. Id. These

cases do not address the use of an indictment to establish the merits of the charge contain

ed therein, whet

her in probation r

evocation proce

edings or any othe

r proceedings.

In the context of probation revocation proceedi ngs, a trial court may revoke a de fen dant’s probation whenever it finds that the probationer has violated the conditions of probation.

### -3-

See Tenn. Code Ann. § 40-35-310 (1997). Prior to revocation, however, a trial court must “inquire in to the charges . . . a

nd at such inquiry,

the defendant mus

t be present and is

e ntitled to b e represented

by counsel and has the right to introduce testimony in the defendant’s behalf.” Tenn. Code Ann. § 40-35-311( b) (1997). Indee

d, because a def

endant’ s condi tional freedom from incarceration

is at risk in a probation revocation proceeding, the defendant is entitled by the state and federal constitutions to some quantum of due process. State v. Wade , 863 S.W.2d 406, 408 (Tenn. 1993). See also State v. Ozier , No. W1999-01478-CCA-R3-CD, 2 000 WL 351375 , at *2 (Tenn. Crim. App. at Jackson, A pril 4, 2000). Spec

if icall y, a defendant is entitled to the following procedures: (1) written notice of the claimed violation of probation;

(2) disclosure to

the probationer o

f the evidence a

gainst him; (3) an opportunity

to be heard in per

son, to present witn

esses, and to introduce documentary evidence; (4) the right to confront and cross-examine adverse witnesses (absent good cause for not allowing confrontation and the reliability of th e proffered evidence); (5) a “neutral and detached” tribunal; and (6) a written statement by the finder of fact as to the evidence relied on and the reasons for revocation. Wade
, 863 S.W.2d at 408 (citing Gagnon v. Scarpe lli , 411 U.S. 778, 786, 93

S.Ct. 1756, 1761-1762 (1973)). Moreov

er, while the trial judge ne

ed not find beyond a

reasonable doub

t that a violation of the c onditio ns of probation has occurred, the existence of a violation must be supported by a preponderance

o f th e evidence. Tenn. Code Ann. § 40-35-311(d). In other words, the record on appeal must demonstrate th at the trial judge h

as not acted arbi

trarily and has exercised

conscientious judgment. State v. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991) ; State v. Gregory , 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

That having been said, pending charges can be the basis for a revocation of probation. Statev. Prof

fi tt , No. 03C01-9901-CR-00026, 1999 WL 817663, at *2 (Tenn. Crim. App. at Knoxville, October 11, 1999). However, a trial court may not rely upon the mere

fact of an arre

st

or an indictment to revoke a defendant’s probation. Harkins , 811 S.W.2d at 83; State v. Crites
, No. 01C01-9711-CR-00512, 1999 WL 61053, at *3 (Tenn. Crim. App. at Nashville, February 9, 1999); Statev. Ellison , No. 01 C01-970 8-CR-00361, 1998 WL 272955, at *2 (Tenn. Crim. App. at Nashville, May 29, 1998) ; State v. McDonald , No. 01C01-9102-CC-00032, 1992 WL 92949, at *3 (Tenn. Crim. App. at Nashv ille, May 7, 1992).

First, sole relianc

e by th e Stat e and the trial court upon a grand

jury indictment in or

der to establish the

defendant’s co

mmission of a crime

during the probationary period denies a defendant the mini mum requirements of due process in probation revocation proceedings. Second, “[a]n indictment is bas ed upon probab le cause . . . whereas the standardfor revoc ation is preponderance of the evidence.” Crites , No. 01C01-9711-CR-00512, 1999 WL 61053, at *3. Third

, testi mo ny concerning a defendant’s indictment for an offense does not afford a trial court suff

icient informatio

n upon which it may ma

ke a conscientiou

s and intellig en t judgment. McDonald
, No. 01C01-9102-CC- 00032, 1992 WL 9294

9, at *3. Thus, the Sta

te “must produce evidence in the usual form of testimony” in order to establish the probationer’s commission of another offense. Ellison , No. 01C01-9708-CR-00361, 1998 WL 272955, at *2.

### -4- Our conclusion that the trial court erred in relying upon the petitioner’s indictment for aggravated assault in revoking the appellant’s probation does not, however, en title the appellant
to relief. We note that, at the probation revocation hearing, the appellant himself pr od uced “evidence in the usual form of testimony” instead of standing upon any o bjection to the State’s and the trial court’s reliance upon his indictment for aggravated assault. Accordingly, as noted earlier, the trial
court was also able to observe that the evidence adduced by the appellant supported the grand jury’s

ac tion. In o ther words, the trial court found probable cause to believe that the appellant had committed the offense

of aggrav ated assault, thereby accrediting the testimony of Mr. Gaia. Deferring to the trial court’s assessment of Mr. Gaia’s testimony, State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1 991), we conclude that the evidence also preponderates in favor of the appellant’s guilt of aggravated assault during his probationary period and that any error by the trial
court was harmless. See, e.g.
, Statev. Conner , No. 02C01-9807-CR-00201, 1999 WL 1095649, at *2 (Tenn. Crim. App. at Jackson, October 31, 1999).

III. Conclusion For the foregoing

reasons, we aff

irm the judgment of t

he trial court.