IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 17, 2024

STATE OF TENNESSEE v. BOBBY GENE CARNEY

Appeal from the Criminal Court for Davidson County

No. 2022-A-54 Steve R. Dozier, Judge

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No. M2023-01305-CCA-R3-CD

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The Defendant, Bobby Gene Carney, appeals the trial court’s partial revocation of his 

probation, arguing that the trial court abused its discretion in revoking his probation and 

ordering him to complete inpatient drug treatment based on a single instance of what were 

only technical violations. Based on our review, we affirm the judgment of the trial court. 

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

JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which ROBERT L.

HOLLOWAY, JR., and MATTHEW J. WILSON, JJ., joined. 

Gina Crawley, Nashville, Tennessee (on appeal and at hearing), for the appellant, Bobby 

Gene Carney. 

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

General; Glenn R. Funk, District Attorney General; and Jenny Charles and J. Wesley King, 

Assistant District Attorneys General, for the appellee, State of Tennessee. 

OPINION

FACTS

On January 26, 2022, the Davidson County Grand Jury returned a three-count 

indictment charging the Defendant with aggravated assault, possession of drug 

paraphernalia, and public intoxication. On February 23, 2023, the Defendant pled guilty 

07/03/2024
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to aggravated assault, a Class C felony, and was sentenced by the trial court as a career 

offender to six years, one month in the Tennessee Department of Correction, suspended to 

supervised probation. Under the special conditions section of his judgment was the 

notation “6 years + 1 month @ 60% with SCRAM + must complete IOP supervised 

probation. Stay away from Honky Tonk Central including the outside lobby for 

customers.” 

On May 3, 2023, the trial court entered an order that the Defendant be removed from 

the SCRAM device and placed on random drug screens each week with Stephanie 

Krivcher. 

On May 17, 2023, the Defendant’s probation officer, filed a probation violation 

report alleging that the Defendant had committed a technical violation of his probation by 

“not complying with his special conditions per the SCRAM Device through Metro DUI 

probation.” The probation officer reported that the Defendant was a “no-show” for his test 

on May 4, 2023, and that he failed to call his probation officer as required on May 6 and 

May 9, 2023. A probation violation warrant was filed that same day, and a revocation 

hearing was held on August 16, 2023, following the Defendant’s August 7, 2023 arrest. 

At the hearing, Stephanie Krivcher testified that she began supervising the 

Defendant on May 3, 2023. Prior to that date, the Defendant had been “on SCRAM 

device[,]” but because he was having issues with payment, he was placed on “Aver testing

in lieu of the SCRAM.” When asked what had been going on with the Aver test, she 

responded that the Defendant was simply non-compliant. She said she met with him after 

court on May 3, 2023, and informed him that he “would be required to call into Averhealth 

every day” and that there were associated fees, which were his responsibility. She stated 

that the Defendant, who got “very irritated with [her]” during their conversation, told her 

that he had neither a phone nor transportation and “basically said, let me just sign this and 

get out of here.” She testified that she told the Defendant if there was an issue and he did 

not think he would be able to comply with the conditions of probation, they needed to go 

back into the courtroom and address it immediately. At that point, the Defendant told her 

that he would use his brother’s phone to report. 

Ms. Krivcher testified that the Defendant “was just not showing up for any drug 

screens. He didn’t show up for one.” She said she noticed that the Defendant was not 

calling in as required, checked the computer system, and saw that he was also not reporting 

for his drug screens. She stated she emailed “Mr. Langdon, who then forwarded it to [the 

Defendant’s] probation officer to remind [the Defendant]” that he needed to call in and 

stop missing his drug tests, but “[the Defendant] just never reported for a drug screen.” 
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Upon questioning by the trial court, Ms. Krivcher testified that the Defendant made 

the required check-in calls to Averhealth a total of twenty-two times. Although not certain, 

she assumed that he used his brother’s phone to make those calls: “So he made it work 22 

times, he just never did it anymore.” She said the Defendant last called in on June 28, 

2023. The Defendant did not call at all during the month of July. On August 7, 2023, the 

Defendant was arrested. According to her records, the police were investigating a person 

with a weapon on Dickerson Pike and while speaking with the suspect, “they found out 

[the Defendant] had an outstanding warrant.” 

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

report, the Defendant was accused of violating rule ten for violating SCRAM, but that it 

was actually a violation of “random drug testing.” 

Defense counsel expressed concern that the Defendant had not been given notice of 

the additional violations mentioned by Ms. Krivcher. Given the choice of having either a

new warrant or an amended warrant filed, she stated that she thought an amended warrant 

would be sufficient. An amended warrant was filed that same day. The amended warrant 

again had the “technical only” box checked on the form and included the information that 

the Defendant was in violation by “not complying with his special condition of daily calling 

for Avertest[,]” and that he “stopped calling 6/28/2023 and has no calls for July and August 

when he was arrested.” 

At the August 17, 2023 hearing, Ms. Krivcher agreed with the trial court’s summary 

of the testimony she had provided at the previous day’s hearing, and the Defendant 

conceded he was guilty of those technical violations. Defense counsel argued, however, 

that the Defendant was guilty of only “one instance” of “technical violation or violations” 

and that the trial court could not, therefore, revoke his probation pursuant to Tennessee 

Code Annotated section 40-35-311(d)(2). Defense counsel proposed that the trial court 

instead “reinstate his probation and release him back into community.” Barring that,

defense counsel requested that the Defendant be allowed to apply to either “Buffalo 

Valley” or “Samaritan Recovery Center” and be released back into community upon his 

completion of whichever program accepted him. Finally, defense counsel requested as a 

last option that the trial court order the Defendant to complete the New Avenues residential 

program, followed by reinstatement to probation. 

At the conclusion of the hearing, the trial court found that the Defendant had 

violated his probation by “not showing up.” The trial court further found that it was not 

“just a technical violation,” but instead that the Defendant “wasn’t cooperating at all” and 

“just kind of quit reporting.” The trial court, therefore, revoked the Defendant’s probation

and ordered that he enter treatment at New Avenues, with the Defendant allowed to “try 
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again with Ms. Krivcher” upon his completion of the New Avenues program. This appeal 

followed. 

ANALYSIS

The Defendant contends on appeal that the trial court abused its discretion in 

revoking his probation and ordering him to complete treatment at New Avenues, arguing 

that his violation was a technicality under Tennessee Code Annotated section 40-35-311(g) 

because he did not pick up any new charges, violate the community corrections supervision 

matrix, abscond, or contact the victim. The State argues that the trial court acted within its 

discretion when it partially revoked the Defendant’s probation because the Defendant 

committed “multiple technical violations of his probation.” 

A trial court has the discretionary authority to revoke probation upon a finding by a 

preponderance of the evidence that the defendant has violated the conditions of his or her 

probation. Tenn. Code Ann. §§ 40-35-310(a); -311(e)(1); State v. Shaffer, 45 S.W.3d 553, 

554 (Tenn. 2001). The trial court also is vested with the discretionary authority to 

determine the consequences of a defendant’s violation of his or her probation. See Tenn. 

Code Ann. §§ 40-35-310(a); -311(e). “An abuse of discretion occurs when the trial court 

applies an incorrect legal standard or reaches a conclusion that is illogical or unreasonable 

and causes an injustice to the party complaining.” State v. Lewis, 235 S.W.3d 136, 141 

(Tenn. 2007) (internal quotation and citation omitted). Probation revocation is a “twostep” process by the trial court. State v. Dagnan, 641 S.W.3d 751, 757 (Tenn. 2022). “The 

first [step] is to determine whether to revoke probation, and the second [step] is to 

determine the appropriate consequence upon revocation.” Id. Each step is a separate and 

distinct decision, although there is no requirement that two separate hearings be held. Id. 

This court must review and address both decisions on appeal. Id. at 757-58. If the trial 

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

the consequences on the record, this court’s standard of review is abuse of discretion with 

a presumption of reasonableness. Id. at 759.

There are two types of probation violations: non-technical and technical. A nontechnical violation is “a new felony, new Class A misdemeanor, zero tolerance violation 

as defined by the department of correction community supervision sanction matrix, 

absconding, or contacting the defendant’s victim in violation of a condition of probation.” 

Tenn. Code Ann. § 40-35-311(e)(2) (Supp. 2022). Upon finding by a preponderance of 

the evidence that a defendant has committed a non-technical violation, the trial court may 

“cause the defendant to commence the execution of the judgment as originally entered, 

which may be reduced by an amount of time not to exceed the amount of time the defendant 

has successfully served on probation and suspension of sentence prior to the violation.” Id.
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A technical violation is “an act that violates the terms or conditions of probation but 

does not constitute a new felony, new [C]lass A misdemeanor, zero tolerance violation as 

defined by the department of correction community supervision sanction matrix, or 

absconding, or contacting the defendant’s victim in violation of a condition of probation.” 

Id. at § 40-35-311(g) (Supp. 2022). A trial court may not revoke probation based on one 

instance of a technical violation or violations. Id. at § 40-35-311(d)(2). A trial court may 

revoke a defendant’s probation based upon a second or subsequent technical violation and 

impose a temporary term of incarceration not to exceed: (1) fifteen days for a first 

revocation; (2) thirty days for a second revocation; (3) ninety days for a third revocation;

or (4) the remainder of the sentence for a fourth or subsequent revocation. Id. at § 40-35-

311(e)(1)(A). Alternatively, upon a second or subsequent technical violation, a trial court 

may revoke a defendant’s probation and resentence a defendant to a term of probation that 

includes participation in community-based alternatives to incarceration. Id. at § 40-35-

311(e)(1)(B). 

Because the word “instance” is not defined in the statute, both the Defendant and 

the State turn to the Merriam-Webster definition of an instance as “a step, stage or situation 

viewed as part of a process or series of events[,]” but with each interpreting the definition 

differently. Specifically, the State argues that because an instance is a relatively brief 

period and the Defendant was required to make a phone call every day, “an [instance] of 

violative conduct occurred each day [the] Defendant failed to make a check-in call.” The 

State also argues that the Defendant’s failure to comply with the random drug tests 

constitute additional technical violations and notes that the revocation statute defines a 

“technical violation” as “an act that violates the terms or conditions of probation.” Tenn. 

Code Ann. §40-35-311(g) (emphasis added). The Defendant, by contrast, argues, inter 

alia, that the dictionary definition “shows that instance can cover a certain period that is 

delineated by the violation of probation.” 

We find the State’s argument most persuasive. To hold otherwise would result in a 

criminal defendant’s being allowed to flaunt the rules of probation, or as the trial court 

found in this case, to simply stop cooperating, with no real consequences so long as his 

violations are only technical violations. “In other words, a probation officer cannot 

supervise a probationer who refuses to report.” State v. Butler, No. W2023-00566-CCAR3-CD, 2023 WL 8234319, at *8 (Tenn. Crim. App. Nov. 28, 2023) (affirming the trial 

court’s revocation of a defendant’s probation based on trial court’s finding that, by failing 

to cooperate, the defendant had essentially absconded). We, therefore, affirm the judgment 

of the trial court ordering a partial revocation of the Defendant’s probation and completion 

of the New Avenues program based on his multiple technical violations of his probation. 
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CONCLUSION

Based on our review, we affirm the judgment of the trial court. 

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JOHN W. CAMPBELL, SR., JUDGE