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

Briefs S eptem

ber 24, 200 2 STATE OF TENN ESSEE v. STEVEN E . SMITH Direct Appeal from the Criminal Court for Cum berland County No. 4806 Leon C. Burns, Jr., Judge

No. E2001-02892-CCA-R3-CD December 16, 2002
In Decemb er 1997, the defe ndant wa s convict

ed of the sale of c ocaine o ver .5 g rams , a Cl ass B fe lo ny, and sentenced to eight y ears, with all but sixty day s suspended, and the balance to be served on probation. In October 1998, his probation wa s revoked becaus e he was convicted that y ear of possession of marijuana, criminal impersonation, and co ntributing to the delinquency of a minor. He was incarcerated for ninety days and ag ain placed on pro bat ion, this tim e in community corrections. In December 1998, another

probation violation warrant was issued, this time alleging that the defendant had absconded. I n September 1999, his probation was revo ked and he was ordered to serve the balance of his sentence in the Department of Correction. Apparently, he was again pl ace d on pro bat io n, w it h t he c ase tra nsf err ed t o Mi chi gan . In April2001, another probation warrant was issue d, charg

ing the d efenda nt with fa iling two drug sc reens a nd att empting to ad ulterate a drug s creen. Follow ing a he aring, the cour t revoke d the def

endant’ s probati on and he timely appealed. We aff

irm the jud

gment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID H. W ELLES , JJ., joined.
Me rr il yn Feirman, Nashville, Tennessee (on appeal); David Nea l Brady , District Public Defender; and Cy nthia S. L yon s, Assista

nt PublicDefender (at trial and on appea l), for the appellant, Steven E. Smith.
Paul G. Summers , Attorne y General and Repor

ter; Mar k A. Fulks , Assistan

t A ttor ney

Genera l; Willia m E. Gibson, District Attorney Gene ral; and Terry

D. Dycus, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION
The tw o claims raised on appeal are that the trial court e rred by a dmitting a repor

t of th e MichiganDepartm

ent of C orrections with results of two drug screens fa iled by the defe

ndant and1 Th is word is hand written into the do cum ent. -2-

in revoking his probation because of his drug use. Following our review, we af firmthe revocation of probation.
At the revocation hearing, Chester Dar by of the Tenne ssee Board of Probation and P arol e testified that he had been the defenda nt’s probat ion officer. An interstate compact request wa s prepared and, at the defendant’s request, his probation was transf erred to Mi ch ig an . S ub se qu en tl y, Mr. Darby

receiv ed a rep ort from Michigan that the defendant had failed a drug test. Over the objection of the defendant , a form s tyled “Michig an Depa rtment of Corrections/Subtance [ sic] Abuse Admission” was entered into evidence. The body of the sta tement is a s follows: “I hereby admit I have r ecen tly used the controlled or mind-a ltering substance of Marijuana 1 as indicated in the substance abuse

test admin

istered t o me this da

te by my p robation /parole agent.” Additionally , the document bears the hand written notation “the subject also submit/attempted to submit an adulterated sample.” The document bears the defe ndant’s s ignatur

e, the da te of Apr il 5, 2001, a

nd the ille gible signatu re of a witness.
Mr. Darby testified tha

t Michigan requested that Tenne ssee issue a probation violation warrant for the defendant, and he did so.
The defendant testified, admitting that he ha d failed a drug test in Michigan, but said that the word “marijuana” had

not been written on the form when he signed it. He said that he “was having like a nervous brea

kdow n, or

what ever ” whi le he

was i n Mich

iga n and was presc

ribe d Xan ax, Effexor, and Hydroc odone . He sai d he was told by the pres cribi ng d octor that the se medications would cause him to fail a drug test. I n signing the paper, he thought that he wa s admitting

only to failing the drug

test. He s aid

that he took

a bottle c ontaining

his wife’ s urine to

use for a drug te st while he was in Michigan, but did so because of problems he was having with his probation officer there.
At the conclusion of

the testim

ony , and the a

rgumen t of couns el, the trial court revoked the defenda nt’s prob ation, sta

ting as f ollows:
THE COURT: We’ve been down the road of revocations befor e, and was revoked

in boot ca

mp. I g uess , [defense

counsel], I guess whether or not your object

ion is a va lid objec tion is about the only iss ue. He made an admission here. He denies marijuana , but h e doesn’t deny attemptin g to take

in a sample

not his, so I

guess whatever you might want to say

in his beha

lf, I guess I should listen. Do you wan t to s ay anything? [DEFENSE

COUNSEL

]: W ell, Yo ur Honor, the violations that we’re t al king about, obviously, there ’s a history here , but the violations that we’ re talkin g about are in f act tec hnical v iolat ions.-3- There has been no evidence that he ’ s committe d any new crim

es. He’s got a wife, he’s got a fa mily, he’s got, apparently, dece nt job prospec ts, and I would request that he be given an other chan ce to come bac k out o n probation and see if he can’t ge t this sentence behind him

. THE COURT: Man

y tim es when p eople

are positive for drug screens there are split confinements or other chances, but the record indicates that Mr. Smith has had those chances, and we still haven’t got the messa ge across, so I th

ink there ’s suffic

ient gr ounds to re

voke his probation to serve the balance of his sentence.
The legislature of this state has vested in the trial court sole authority to g rant suspension of sentences and probation to defendants. See Tenn. Code Ann. § 40-35-303. Trial co urts a re also granted broad authority to re

voke a su spended sentence “at any time within the maximum time which was di re ct ed an d o rd er ed by the court for such suspension, after proceeding as pr ovided in § 40-3 5-311.” Tenn. Code Ann. § 40-35-310. The procedures outlined in section 40-35-311 ar e fundamental to our sy stem of jus tice bec ause a de fendant who is gr

ante d probation ha s a libert y interest that must be protected by due process. See State v. Stu bblefield , 953 S.W.2d 223, 2 2 5 (Tenn. Crim . App. 1997) (citi ng Practy v. State , 525 S.W.2 d 677, 680 (Tenn. Crim. App. 1974)). The procedures for revocation of proba tion mandated by our leg

islature have been determine d by th is court to c omp ly with federa

l constitutional standards as set forth in the leading case of Gagnon v. Scarpelli , 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). See Practy , 525 S.W.2d at 682 (“This State’s p

rocedur e for re vocation of sente nce suspe nsi o n and probation is an orderly one affording a probationer full protection of his constitutional right to due process.”).
In this matter, the trial court revoked the defendant’ s probation, in part, because he admitted to substituting a vial of his wife’s urine for his ow n so that he would not “ fail” a d

rug scr een. Thi s alone is a sufficient reason for revoki ng his prob ation. As f or whether the tr

ial cour t erred in admitting the results of the f ailed dr ug scre ens in Mic higan, we note

that the defendant admitted that the results showed that he had bee n using d rugs but asserted that he had taken only prescription drugs, which ca

used the p ositive re sults. Even if the trial court erred in admitting these records, the defendant’s separate admission that he had attempted to pass the test by using his wife’s urine would, by itself, be sufficient

grounds for revoking his probation. According ly, we aff irm the order of the trial court.

___________________________________ ALAN E. GL

ENN, JUDGE