# FILED

February 13, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE JANUARY 1998 SESSION

STATE OF TENNESSEE, ) ) Appellee, ) No. 03C01-9705-CR-00175

) ) Knox County v. ) ) Honorable Richard Baumgar tner, Judge ) MAURICE TRAVON JOHNSON, ) (Probation Revocation) ) Appellant. )
For the Appellant : For the Appellee : Mark E. Stephens John Knox Walkup District Public Defender Attorney General of Tennessee and and John Halstead Georgia Blythe Felner Assistant Public Defender Assistant Attorney Gener al of Tennessee 1209 Euclid Avenue 450 James Robertson Parkwa y Knoxville, TN 37921 Nashville, TN 37243-0493 (AT TRIAL) Randall E. Nichols Mark E. Stephens District Attorney General District Public Defender and and Paula Gentry and C. Leon Franks Paula R. Voss Assistant District A ttorney General Assistant Public Defender City County Build ing 1209 Euclid Avenue Knoxville, TN 37902 Knoxville, TN 37921 (ON APPEAL)

OPINION FILED:____________________ AFFIRMED Joseph M. Tipton Judge2 O P I N I O N

The defendant, Maurice Travon Johnson , appeals as of right from the revocation of his probation by the Knox County C riminal Court. He conten ds that the trial court abused its di scretion by revoki ng his probation. We affirm the revocation.

On March 8, 1996, the defendant was convicted of possessing cocaine with the intent to sell and deliver and of introducing drugs into a penal facility. He received consecutiv

e, Range I sentences of eight years and five years , respectively. On August 15, 1996, the defendant’s sentences were suspended, and the defendant was placed under the super vision of the Community Al ternatives to Prison P rogram (“CAPP”) for a period of thi rteen years. On October 30, 1996, a probation revocat ion warrant was filed ag ainst the defendant, alleging that he had violated the conditions of his probation (1) by po

ssessing or using a lcohol or controlled subs tances, (2) by failing to make a full and accurate report to his case manager, and (3) by failing to keep his curfew.

At the probation revocati on hearing, Katherine Hanco ck testified that she was employed by the Kn ox County Community Alternatives to Pris on Program and that she supervised the defendant. She stated that the defendant was placed in the CAPP Care Program, where he was required to par ticipate in six w

eeks of treatment followed by job placement and follow -up treatment. She said that dur ing the first six w

eeks, the defendant did an excellent job. However, Ms. Han cock testified that the defendant had a lot of problems with cocai ne and that every drug screen that she gave to the defendant was positive for cocaine. She said that the def endant admitted his drug use to her.3 Ms. Hancock stated that she then arranged for the defendant to attend Another Chance, an in-patient t reatment program. She said th at the defendant attended Another Chance for approx imately one month. Ms. Hanc ock testified that after a court appearance on October 11, the treat ment coordinator for Another Chance notified her that the defendant had stopped att ending group meetings for a week and that he had tested positive again for cocaine use. Ms. Ha ncock stated that the defendant also failed to report reg ularly to CAPP after Oct ober 11 and did not return the messages that she left at the defendant’s girlfriend’s house. She said that she then prepared a probation revoc ation warrant. Ms. H ancock testified that she believ ed that the defendant would no longer ben efit from further rehabilitation efforts by CAPP.

The defendant testified tha t he had a problem with crack cocaine. He conceded that he used cocaine w hile participating i n CAPP and that a drug screen given before October 11 showed that he had used cocaine. He blamed his drug use during the program on depr ession. He admitted that follow ing a court appearance on October 11, the trial court gave him thirty days to comply with the conditions of his probation and warned him that it would revoke hi s probation if he did not stop usi ng drugs. The defendant stated that he sto pped using drugs after the hea ring, and he claimed that h e was not given any more drug tests. He explai ned that aft er the hearing, he attended the in-patient prog ram but missed a week of treatment because he was sick with the flu. He claimed that he called the receptionist at Another Chance each day that he missed, and he said that the reason he did not contact his CAPP supervisor was that he believed that the personnel at Another Chance contacte d CAPP. He said that he d id not ret urn for t reatmen t becaus e he was not ified a f ew days bef ore his ne xt court appearance on November 1 that his insurance refused to pay for the treatment due to his absences. Rather t han reporting his absences to CAPP, the defendant chose instead to appear in cour t.4 At the conclusion of the hearing, the trial court revoked the defe ndant’s probation and ordered the defendant to se rve the remainder of his sen tence in the custody of the Department of Corr ection. In revoking the defendant’s probation, the trial court stated:

[I]t’s clear th at you have a serious p roblem with the cocaine abuse. And I think that that’s affected your entire lifestyle for a significant period of time here. I was hoping -- I was optimistic, very candidly, back in August -- that you might have a shot at making it on the Care Program, but it just didn’t work out. The most amazing t hin g to me is that when you were here in October, and I . . . explained to you very clearly that it was your absolutely la

st opportunity to get i n compliance. And I candidly d on’t fin d it very dif ficult to believe that whether you were sick or not, that

you couldn’t even make a phone call or contact the people at

the CAP Office. There’s no question you are in violation. In its written rev

ocation orders, the trial court stated that it found that the defendant was “guilty of violating the laws of this State, and has otherwise violated the conditions of his probation.”

Initially, the defendant contend s that his due process ri ghts were viola ted because the trial court di d not adequately place it s findings on the record. H e cites State v. Billy Car

ter , No. 03C01-9506-CR-00159, Sullivan County, sl ip op. at 6 (Tenn. Crim. App. Apr. 16, 1996), in which this court stated that “the trial court’s failure to make findings of fact in accordance w ith the principles of due proc ess . . . coupled with t he records’ failure to reflect that the appellant was g iven written notic e of the claimed probation violation” required a remand for further proceedings to be con ducted in accordance with due process. We do not b elieve that the defendant’s due process rights were vi olated. Although the trial court should have been more s pecific in its factual findings, it obviously found that the defe ndant violated the conditions of his probation by continuing to use drugs after being w arned in October and by fail ing to report to his supervi sor at CAPP.5 If the trial court finds by a preponderance of the evidence that a defendant violated a condition of his probation, it is wit hin the trial court’s di scretion to revoke the defendant’s probation and cause execution of the judgment as it w as originally enter

ed. T.C.A. §§ 40-35-310, -311(d); State v. Mitchell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). For an appellate court to find an abuse of discretion and reverse a trial court’s revocation of probation, it must be demonstrated that the recor d contains no substantial evidence to support the conclusion of the trial court th at a violation of the conditi ons of probation has occurred. State v. Harkins , 811 S.W.2d 79, 82 (T enn. Crim. App. 1991).

The defendant asserts that the trial court abused its discreti on by revoking his probation because the ev idence is insufficient to suppor t a finding that he violat ed the conditions of his probation. He argues that the only proof that the defendant used cocaine after the trial court’s warning on October 11 was hearsay. He contends that his right to confrontation w as violated by the admis sion of Ms. Hancock’s test imony that the treatment coordinator for Another Chance notified her that a drug screening showed that the defendant had used cocaine. How ever, the defendant failed to object to the introduction of the evidence. “W hen no objection to testimony is interposed, such testimony may be properly considered and given its natural probative effect as if it were in law admissible.” State v. Carney , 752 S.W.2d 513, 514-15 (Tenn. Crim. App. 1988). Under these circumstances, the trial court was entitled to rely upon Ms. Hancock’s testimony regarding

the defendant’s continuing use of coc aine to revoke his probat ion.

Although the defendant also argues that there is nothing in the record to indicate that he was req uired to communicate directl y with his CAPP s upervisor, the record does not contain a compl ete list of the defendant’s conditions of probation. At the revocation hearing , the defendant did not dispute that he w as required to communicate with CAPP. Ins tead, he testified that he understood t hat the personnel at the Another Chance program was contacting CAPP for him. Based on the record6

before us, we cannot say th at the record preponderates ag ainst the trial court’s finding that the defendant violated his pr obation by failing to make a full and truthful report to his case manager.

The evidence in this case does not preponderate against the trial court's conclusion that the defendant has failed to comply with the cond itions of his release. We hold that the trial court properly revoked the defendant’s probati on. The judgment of the trial court is affirmed.

Joseph M. Tipton, Judge

CONCUR:

Gary R. Wad e, Judge

William M. Barker, Judge