IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned On Briefs February 1, 2011

STATE OF TENNESSEE v. MARQUIS DEVEREAUX HALL

Appeal from the Criminal Court for Montgomery County

No. 40801123 John H. Gasaway, Judge

No. M2010-00711-CCA-R3-CD - Filed August 12, 2011

Appellant, Marquis Devereaux Hall, pled guilty to aggravated assault, reckless

endangerment, possession of cocaine, simple possession and casual exchange of marijuana,

and theft under $500. The trial court sentenced him to an effective sentence of ten years on

community corrections. After his arrest for possession of a weapon, felon carrying a firearm,

and theft, his supervisor filed a violation warrant. The trial court held a hearing and

concluded that Appellant had violated the conditions of his community correctionssentence.

The trial court imposed Appellant’s sentence of ten years. Appellant appeals the trial court’s

revocation of his community corrections sentence. After a thorough review of the record,

we conclude that the trial court did not abuse its discretion. Therefore, we affirm the trial

court’s revocation of Appellant’s community corrections sentence.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and

ALAN E. GLENN, JJ., joined.

B. Nathan Hunt, Clarksville, Tennessee for the appellant, Marquis Devereaux Hall.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; John Carney, District Attorney General; and John Finklea, Assistant

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

OPINION

Factual Background

At the September 2008 term, Appellant was indicted by the Montgomery County

Grand Jury for aggravated assault; reckless endangerment; possession of a controlled
substance, cocaine, with intent to manufacture, deliver or sell; possession of a controlled

substance, marijuana; possession of a firearm during commission or attempt to commit a

dangerous felony; and theft of property. Appellant pled guilty to aggravated assault, reckless

endangerment, possession of cocaine, simple possession and casual exchange of marijuana,

and theft under $500. The firearm charge was dismissed. On April 9, 2009, the trial court

sentenced Appellant to six years on community corrections for aggravated assault, two years

on community corrections for reckless endangerment, ten weekends in the county jail and ten

years on community corrections for possession of cocaine, fifty-eight days in the county jail

for possession of marijuana, and fifty-eight days in the county jail for theft of property under

$500. The sentences for aggravated assault, reckless endangerment, and possession of

cocaine were ordered to be served concurrently.

On January 14, 2010, Appellant’s community corrections supervisor filed a warrant

alleging a violation of community corrections. According to the warrant, Appellant was

arrested on January 12, 2010 for new charges consisting of possession of a weapon, felon

carrying a firearm and theft of property. On February 24, 2010, the trial court held an

evidentiary hearing on the community corrections violation warrant.

At the hearing, Donald Wilkerson, Appellant’s community corrections supervisor,

testified. He stated that Appellant had been under his supervision since April 9, 2009, when

Appellant was sentenced. He stated that he filed a violation warrant because Appellant was

arrested for new charges, namely theft and carrying a weapon. Other than the arrest,

Appellant was in full compliance with the conditions of his community corrections sentence.

Officer Dominick Sacco testified regarding the facts leading to Appellant’s arrest.

Officer Sacco testified that he was employed with the Clarksville Police Department. He

stated that the evening of November 4, 2009, he was driving down Chapel Street when he

noticed a chair being flung off of a porch and someone running away from a house. He

stopped and went to the house. Once at the house, he received permission to search the

house from the homeowner. Appellant was present at the house when Officer Sacco arrived.

The officer searched the kitchen area first. He explained that when he reached the house, he

could see through the blinds, and he saw an individual doing something in the kitchen.

Officer Sacco could not identify Appellant as that individual. During the search of the

kitchen, he found a Sig Sauer pistol with some bullets and a clip. While Officer Sacco was

dealing with a third individual, Appellant “scooted out and left.”

Detective Michael Ulrey is also employed by the Clarksville Police Department. He

was assigned to investigate the incident on Chapel Street. Detective Ulrey was involved

because the weapon found during the search had been stolen during a burglary he was

investigating at the time. Appellant’s name was mentioned by several witnesses with whom

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Detective Ulrey spoke during his investigation. Detective Ulrey interviewed Appellant. He

testified to the following exchange with Appellant:

[Appellant] stated to me that a subject that was there approached him

to sell him the weapon, that he had seen the weapon in the past and was

looking at it at this time, handled the weapon, stated that the individual wanted

three hundred dollars, that he knew that weapon was only worth a hundred and

fifty on the streets and that he wasn’t willing to give him three hundred dollars

for it, so he gave it back to him.

During his investigation, Detective Ulrey was told by two individuals that Appellant kept the

weapon in his possession for two days while he was deciding whether to purchase the

weapon. One witness had a criminal record and the other had no criminal record.

At the conclusion of Detective Ulrey’s testimony, the trial court asked the detective

to testify regarding what Appellant had specifically told him during his investigation. The

detective responded in the following manner:

Yes, sir, [Appellant] stated to me that he had seen the weapon in the

past at other locations he had been, so he was fairly familiar with the weapon

and that he had known it had been taken from what he referred to “a lick”,

which is some sort of criminal activity, typically a burglary and that he had

discussed purchasing it in the past and this night specifically, he had - - was

going to buy it or looked at it to buy it, was holding it and said his fingerprints

would be on it, because he was holding it, looking at it, considering buying it

but the [seller] wanted three hundred dollars for it. [Appellant] knew that this

weapon was only worth a hundred and fifty dollars on the streets, so he was

not willing to pay him three hundred dollars, which was the asking price that

night.

At the conclusion of the hearing, the State argued that the evidence that the Appellant,

a convicted felon, handles the weapon and considered purchasing it, was sufficient to show

that the Appellant possessed a firearm in violation of the terms of his community corrections

sentence. The trial court made the following findings when making its decision:

Okay, before me today is a Community Corrections violation matter,

where the [Appellant] has been arrested for possession of a weapon. I have

heard proof. I am not just considering the mere arrest. The officers have come

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to testify and the Detective made it very clear that this [Appellant] had seen

this weapon at other locations. He was familiar with it. He had to have

handled it when he discussed purchasing it and he looked at it to buy it. You

know, I don’t know what anybody considers possession, but that is possession

in the strict sense, that he had direct control over this weapon and he was

looking to buy it.

. . . I agree – [Appellant], you have been granted a privilege by being

placed on Community Corrections instead of being sent to the penitentiary.

So, you are out there discussing buying a weapon as a convicted felon. That’s

from your own mouth, and even the fact that you handled it then in discussing

to buy it, the fact that you left the residence there without talking to the police

officers, I am considering the fact that these other witnesses say you had it for

two days, but that is not dispositive, that’s not controlling in my ruling. What

controls my ruling is the fact that you left there, you didn’t stick around, and

you admitted that you handled it, you discussed purchasing it and it wasn’t the

value that you thought it would be?

. . . [I]f you are out there and you are going to buy a weapon, then

Community Corrections and alternative sentencing is not the place for you.

I find that you have violated the terms of your Community Correction[s]

by a preponderance of the evidence, in looking to buy this weapon, in handling

the weapon, in considering the street value and so forth, you had control over

the weapon at one point. I am not going to have that. You are in violation of

your Community Correction[s] sentence and your entire ten years will be

imposed. You will be in custody.

Appellant filed a timely notice of appeal.

ANALYSIS

On appeal, Appellant argues that the trial court abused its discretion by revoking

Appellant’s community corrections sentence because the trial court improperly considered

hearsay testimony and because the State failed to prove that he violated the conditions of his

community corrections sentence.

The Community Corrections Act of 1985 was designed to provide an alternative

means of punishment for “selected, nonviolent felony offenders in front-end community

based alternatives to incarceration.” T.C.A. § 40-36-103(1). The community corrections

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sentence provides a desired degree of flexibility that may be both beneficial to the defendant

and serve legitimate societal aims. State v. Griffith, 787 S.W.2d 340, 342 (Tenn. 1990).

Even in cases where the defendant meetsthe minimum requirements, however, the defendant

is not necessarily entitled to a community corrections sentence as a matter of law or right.

State v. Taylor, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987).

Once a defendant violates the terms of his community corrections program, the trial

court may revoke the sentence and impose a new one:

The court shall also possess the power to revoke the sentence imposed at any

time due to the conduct of the defendant or the termination or modification of

the program to which the defendant has been sentenced, and the court may

resentence the defendant to any appropriate sentencing alternative, including

incarceration, for any period of time up to the maximum sentence provided for

the offense committed, less any time actually served in the community-based

alternative to incarceration.

T.C.A. § 40-36-106(e)(4). In other words, the trial court may conduct a sentencing hearing,

and may impose a greater sentence than the original sentence. Griffith, 787 S.W.2d at 342;

State v. Cooper, 977 S.W.2d 130, 132 (Tenn. Crim. App. 1998).

In State v. Harkins, 811 S.W.2d 79 (Tenn. 1991), our supreme court ruled that a

community corrections sentence is so similar to a probationary sentence as to require the

application of the same standard of review. Our general law provides that a trial court may

revoke a sentence of probation upon finding by a preponderance of the evidence that the

defendant has violated the conditions of his release. T.C.A. § 40-35-311(e); Stamps v. State,

614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). On appeal, a revocation will be upheld absent

an abuse of discretion. In order to establish that the trial court has abused its discretion, the

defendant must show that there is no substantial evidence to support the determination that

he violated the terms of his sentence. Harkins, 811 S.W.2d at 82 (citing State v. Grear, 568

S.W.2d 285, 286 (Tenn. 1978)); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App.

1980). Relief can be granted only when “‘the trial court’s logic and reasoning were improper

when viewed in the light of the factual circumstances and the legal principles involved.’”

State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235,

242 (Tenn. 1999)). It is incumbent upon the trial judge to exercise a conscientious and

intelligent judgment. See State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

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Hearsay Testimony

Appellant argues that the trial court erred in hearing Detective Ulrey’s testimony

regarding the other two witnesses who stated that Appellant had kept the weapon for two

days. The State argues that this issue is waived because Appellant failed to object to

Detective Ulrey’s testimony at the hearing.

Typically, a defendant’s failure to make a contemporaneous objection during trial

constitutes a waiver of an issue. Tenn. R. Evid. 103(a)(1); Tenn. R. App. P. 36(a) (stating

that “Nothing in this rule shall be construed as requiring relief be granted to a party

responsible for an error or who failed to take whatever action was reasonably available to

prevent or nullify the harmful effect of an error.”); State v. Cravens, 764 S.W.2d 754, 757

(Tenn. 1989). After a review of the record, we agree with the State. Appellant made no

objection to the introduction of the testimony at issue. Therefore, he cannot successfully

raise this issue on appeal.

Revocation

Appellant argues that the State did not present proof to support the trial court’sfinding

that Appellant was in possession of a weapon. A community corrections sentence may be

revoked based upon pending charges. State v. Andrew B. Edwards, No.

W1999-01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App., at Jackson, May

26, 2000), perm. app. denied, (Tenn. Sept. 11, 2000). However, the mere fact of an arrest

or an indictment cannot be the sole basis for the revocation. Id. The State must provide

evidence “in order to establish the . . . commission of another offense.” Id. In other words,

the State must produce evidence “to establish that the defendant committed the offense with

which he has been charged.” State v. Lontrell Williams, No. W2009-00275-CCA-R3-CD,

2009 WL 3518171, at *3 (Tenn. Crim. App., at Jackson, Oct. 30, 2009).

Detective Ulrey testified that Appellant specifically told him that he had looked at the

weapon to buy it and had held it. Appellant admitted to Detective Ulrey that his fingerprints

would be on the weapon. Appellant points out that the weapon was mishandled at the scene,

so the officers did not test for fingerprints. However, this does not negate the fact that

Appellant admitted to Detective Ulrey that he had handled the weapon. The trial court stated

that it was relying mostly on Appellant’s statements to the detective when it concluded that

Appellant had possessed a weapon in violation of the conditions of his community

corrections sentence.

Therefore, we conclude that the trial court did not abuse its discretion by revoking

Appellant’s community corrections sentence. Appellant has failed to show that there is a

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lack of substantial evidence to support the trial court’s determination that he was in

possession of a weapon. There was sufficient evidence presented at the revocation hearing

to support the trial court’s conclusions.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s decision to revoke Appellant’s

community corrections sentence.

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JERRY L. SMITH, JUDGE

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