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

Briefs J anuary 8, 2002
STATE OF TENN ESSEE v. TERREN CE JEROME JACKSON
Direct Appeal from the Circuit Court for Madison County No. 97-550 Roy B. Morgan, Jr., Judge

No. W2001-01001-CCA-R3-CD - Filed February 1, 2002

The defendant appeals the revocation of his proba tion and reinstat

e ment of his original six-year sentence for ag gr avated a ssault. Th e trial c ourt foun d the def endant vi olated the terms of his probation by failing to ver ify employment, failing to exhibit conduct consistent with good citizenship, and failing to comply with curfew requirements; thus, it revoked his probation. We affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

J OE G. R ILEY , J., delivered the opinion of the court, in which J OHN E VERETT W ILL IAMS and A LAN E. G LENN , JJ., joined. George Morton Googe, District Public Defender ; and Steph en P. Spra cher, A ssistant D istrict Pub lic Defender, for the appellant, Ter rence Jerome Jackson. Paul G. Summers, Attorney General and Reporter ; Renee W . Turner , Assistan t Attorne y Gener al; Jame s G. ( Jerry) Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

Darlene Millson, an officer with the Board of Probation and Parole, testified at the re vocation hearing that she began supervision of the defendant on August 21, 2000, and explained the probation rules to the defendant, which he stated he understood. On Octobe r 11 and November

6 , 2000, Millson went to the

defenda nt's resid ence at approxim

ate ly 7 :15 p.m. to verify his curfew compliance, which requi red him to b e at his re sidence from 6:00

p.m. to 6:00

a.m. On bo th occasions the defendant was not present. She further testified the de fendant neglected to inform her of his arre st for ass ault

on March 9, 2001, and he neglected to provide proof of employme

nt despite her numerous requests. On cross-examination, Millson conceded that she received fax notification of the defendant's new arrest from the jail; her off ice refuses to accept collect phone c alls; and the defendant explained his lack

of employment ver

ificatio n becau se he was paid in cash. She further-2-

testifi ed that the defendant provided a hospital emergency r oom record showing he was at the hospital o n Octobe

r 11th; how ever, th

e recor d revea led he wa s there a

t 9:25 p.m., not 7:15 p.m

. Keeba Jackson, the def

endant's niece, testified that she resided with the defenda nt. She stated the defenda

nt's new a rrest resulted from

an alter cation on March 9, 2001, whe

n she was struck wh

ile attempting to break up a fight between the defendant and her boyfr iend. Jackson conceded she informed the officers who responded to the call that the defendant was the per son who struck her, but she testified that she was actually unsure who hit her.

The defendant testified he instructed the officers to fa x Millson notice of his ar

rest because her office refuse d phone c alls from the jail. He explained he was prevented f rom securing permanent employme

nt due to a

broken le g, so he worked at “small jobs like babysitting and maybe washing dishes for people . . . .” The defendant explaine d that on Octobe

r 11th he t ook a bus to

the hospit

al. Although unsure of the approximate time he left his residence, he was certain Millson wa s not at his home at 7:15 p.m. When asked about Millson’s testimony that he missed curfew on November 6th, he stated, “I don’t know nothing [sic] about that.”

Keeba Jackson was recalled and test ified tha t Millson ca

me by their residence between 9:30 p.m. and 10:00 p.m. on October 11t h, and she informed Millson that the defendant was at the hospital. Jackson explained they were having a birthday party tha t evening and stopped it due to

the defendant’s medical c ondition. Sh e said the defendant’s grandmother called s omeone to

take him to the hospital, and “[e]verybody else went to the hospital w ith him, but I

wanted to

stay at home.” Jacks on f urther recalled that Millson stopped at their residence on other occasions when the defendant was not present, and

she was unable to account for the defenda nt’s wher eabouts o n those occasions.

In rebuttal, Darlene Millson stated no one at the defendant’s re sidence on Octobe r 11th informed her that he was a t the hospital.

The trial court

concluded the evid

ence wa s insuffic ient to establish the defendant neglected to report his arrest to Millson. However, the trial court found tha

t t he defe ndant fa iled to ex hibit conduct consistent with good citizenship due to his participation in a f ight; he failed to

submit employment

verification to Millson; and he violated curfew on October 1 1th a nd November 6th. Placing “great weight” on the defendant’s cur few violations, the cou rt revoked his probation and ordere d that he s erve his sentenc e in conf inement.

PROBATION R

EVOCATION

The defenda

nt conten ds the tria

l court e rroneou sly revo ked his pr obation a nd erroneously ordered that he serve his sentence. W e disagree.
A. Standard of Review-3-

A trial court

may revoke

probation and order the imposition of the original sentence upon a finding by a preponde

rance of the evidence that the per son has violated a condition of probation. Tenn. Code Ann. §§ 40-35- 310, 311. T he decis ion to rev oke prob ation re sts within the sound discretion of the trial court. S ta te v. Mitch ell , 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of probation is subject to an abuse of discretion standard of review, ra ther than a de novo standard. Statev. Harkins , 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abused only if the record contains no substantial evidence to support the conclusion of the tria l court that a violation of probation has occurred. Id. ; State v. Gregory , 946 S.W.2d 829, 832 ( Tenn. Crim. App. 1997). Proof of a violation need not be established beyond a reasonable doubt. Gregory , 946 S.W.2d a t 832; State v. Leach , 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). B. Analysis

The defenda

nt argue s the proo f was i nsuf ficient t o establis h a violat

ion of cur few bec ause the ho spital em ergency room record established the def endant was at the emergency room on October 11 th . Millson testified the defendant provided her “some papers saying he w as at the hospital, but it showed the time as 9:25 [p.m.] andnot at 7:15 [p.m. on October 11th].” The court took “judicial notice” that the time documented on the emergency r oom record was the time of the patient’s initial arrival. Although the defendant now contests the trial court’s taking judicial notice of this fact, he voiced no objection at thehearing. See Tenn. R. Evid. 201(e). By failin g to cha llenge the propri ety

of th e judicial notice, a defendant waives appellate consideration of the issue. State
v. Nunley , 22 S.W.3d 282, 287 (Tenn. Crim. App. 1999). Furthermore, the hospital record, which is the subject of this dispute, was not introduced at the hearing and is not in the record. It is th e duty of the accused to provide a record whic h conveys a f

air, accurate and complete ac count of what transpiredwith reg ard to the issues whi ch form th

e basis of the appe al. Tenn . R. App. P. 24( b); see State v. Taylor , 992 S.W.2d 941, 944 (Tenn. 1999). This issue is waived.

As to the November 6th curfew violation, the defendant had no e xplanation other than saying, “I don’t know nothing [sic] about that.” The trial court could, therefore, prope rly find a violation b ased on th

is inciden t, regar dless of th

e Octobe r 11th inc ident.

The defendant further argues the proof was insufficient to establ ish he failed to verify his employme

nt. Millson testified the defendant failed to provide her with proof of employment eve n though she asked him for proof during every m eeting . This test

imony suff

iciently e stablishe s a probation violation. Finally, the defendant contends the evidence wa s insufficient to establish that he committed the assault o n March 9 th. A tria l court ma

y not rely

upon a me

re arrest to revoke probation. Harkins , 811 S.W.2d at 83 n.3. “Conduct inconsistent with good citizenship,” which was mentioned by the trial court, was formerly a statutory basis for re vocation. See Tenn. Code Ann. § 40-2907 (1955); Finley v. Sta

te , 214 Tenn. 149, 378 S.W.2d 169, 171 (Tenn. 1 964); see also 1961 Tenn. Pub. Acts, Chapter 95, § 7 (rewriting the statute and deleting the “ good ci tizenship” language). The present statute om

it s this langu age and simply requires a “breach of the laws of this state or [a violation of] the conditions of probation.” Tenn. Code Ann. § 40-35-311(a) (Supp. 200 1). It is-4-

genera lly recognized that i n order to prevail in a revocation procee ding based upon allegations of
cr iminal mis conduct, the state must show by a preponderance of the evidence that the defendant violated the law. State v. Michael Harlan Byrd , No. 01C01-9609-CC-00411, 1998 WL 216859, at *7 (Tenn. Crim. App. May 1, 1998, at Nashville). The state need not show a conviction for the new offense, but it

should show by a preponderance of the evide nce that the defendant violated the law. See State v. Andrew B. Edwards , No. W1999-01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App. May 26, 2000, at Jackson), perm. to app. denied (Tenn. 2000).
Here, the tria

l court apparently relied upon the testimony of Keeba Jac kson regarding the defendant’s alterca

tion with he

r boyfri end. It is questiona ble whether her testimony would support a finding by a preponderance of the evidenc e that the defendant violated the law. Regardless, the trial court ha

d ample ba sis to revoke probation based upon the curfew violations and failure to ver ify employment.

CONCLUSION

We conclude the trial court was well within its discre tion to revoke the defendant’s probation. Accord ingly, we affirm.

___________________________________ JOE G. RILEY, JUDGE