State v. Willie Cecil ( 1998 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE FILED
FEBRUARY 1998 SESSION
July 29, 1998
Cecil W. Crowson
STATE OF TENNESSEE ) Appellate Court Clerk
) NO. 01C01-9706-CC-00208
Appellee )
) MAURY COUNTY
v. )
) Hon. James L. Weatherford
WILLIE EARL CECIL )
) (Probation revocation)
Appellant. )
)
For the Appellant: For the Appellee:
Hershell D. Koger John Knox Walkup
135 N. First Street Attorney General & Reporter
P.O. Box 1148
Pulaski, TN. 38478 Georgia Blythe Felner
Assistant Attorney General
2d Floor, Cordell Hull Building
425 Fifth Avenue North
Nashville, TN. 37243-0493
T. Michael Bottoms
District Attorney General
James Lee Bailey, III
Assistant District Attorney
10 Public Square
P.O. Box 1619
Columbia, TN. 38402-1619
OPINION FILED:______________________
AFFIRMED
WILLIAM M. BARKER, JUDGE
OPINION
The appellant, Willie Earl Cecil, appeals as of right from the Maury County
Circuit Court’s revocation of his probation. We affirm the judgment of the trial court.
On August 14, 1996, the appellant pled guilty to possession of cocaine with the
intent to sell, a Class C felony; delivery of cocaine, a Class C felony; contributing to
the delinquency of a minor, a Class A misdemeanor; and selling over .5 grams of
cocaine, a Class B felony. The trial court sentenced the appellant to concurrent terms
of three (3) years for the possession and delivery of cocaine, eleven (11) months and
(29) days for contributing to the delinquency of a minor, and eight (8) years for the
selling of over .5 grams of cocaine. The effective eight (8) year sentence was to be
suspended upon the service of 120 days in the county jail.
On August 15, 1996, one day following appellant’s plea hearing, the appellant
was arrested for criminal trespass and the possession of crack cocaine. Those
charges arose from his activities at the Columbia Housing Authority (C.H.A.) in Maury
County, Tennessee. After his arrest, a probation violation warrant was issued and the
trial court conducted an evidentiary hearing. 1
Officer Christopher Munz, with the Columbia Police Department, testified that
he first observed the appellant in the C.H.A. on the day of appellant’s plea hearing.
The appellant was standing in a grassy yard at 1219 McBride Circle. Officer Munz told
the appellant that due to his criminal history, his presence in the C.H.A. constituted
criminal trespass.2
The C.H.A. has a policy that any non-resident with a criminal history involving
drug related or violent offenses is considered a threat to the housing residents. As
such, non-residents with criminal records are prohibited from entering onto private
1
On August 30, 1996, while appellant was in custody for the alleged probation violation, he was
charge d with the a dditional offe nse of a rson. An ame nded p robation v iolation warra nt was iss ued to
reflect the arson charge; however, the record is silent as to the circumstances surrounding that alleged
offense.
2
Officer Munz testified that he had been informed of appellant’s drug convictions by another
officer with the Ma ury Coun ty Drug T ask F orce.
2
property within the C.H.A.. Officer Munz explained the C.H.A. policy to appellant and
told him that he must leave the housing area and not return. Appellant complied with
Officer’s Munz’s warning on August 14; however, he returned to the same property on
the following day.
On August 15, while executing a search warrant in the C.H.A., Officer Munz
and officers with the Maury County Drug Task Force observed appellant at 1219
McBride Circle. The appellant was standing in the front yard with another man,
Darnell Moore, when police officers approached the two men and ordered them to lay
on the ground. Officers Tommy Goats and Lonnie Lyles with the Drug Task Force
testified that they noticed the appellant holding something in his hand before he was
apprehended. Officer Goats stated that he observed the appellant make a throwing
gesture as if he were discarding the object that was in his hand.
Although officers suspected that the appellant possessed illegal contraband, no
drugs were found on his person at the scene. An empty medicine bottle was
discovered nearby under a parked car and Darnell Moore had crack cocaine in his
possession. The appellant was arrested for criminal trespass and possession of
cocaine.
Appellant’s mother, Lovey Faye Cecil, testified for the defense that the
appellant had been helping her on the day of his arrest. Ms. Cecil lived in Columbia at
1515 Ryan Place, approximately two blocks from the C.H.A.. She stated that she had
no transportation of her own and that the appellant had assisted her in picking up his
younger brother and the brother’s medication earlier in the day.
The trial court determined that there was sufficient evidence that the appellant
committed criminal trespass when he entered the residential property on McBride
3
Circle.3 The court, therefore, revoked appellant’s probation and ordered him to serve
his eight (8) year sentence in the Department of Correction.
On appeal, the appellant contends that the trial court abused its discretion in
finding that he violated the terms of his probation. We disagree.
The appellant concedes that the trial court was empowered to revoke his
probation and order the execution of the original judgment upon finding by a
preponderance of the evidence that appellant violated the conditions of his probation.
Tenn. Code Ann. § 40-35-311(d)(Supp. 1996). Moreover, the revocation of a
probationary sentence is committed to the sound discretion of the trial judge and will
be sustained on appeal if the evidence is sufficient to allow the trial judge to render a
conscientious and intelligent decision. See State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991); State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).
In this case, the proof of appellant’s criminal trespass was sufficient to support
the trial court’s decision to revoke appellant’s probation. The appellant has conceded
that he “was in the wrong place at the wrong time” when he entered the residential
property in the C.H.A.. The revocation of his probationary sentence was proper and
the judgment of the trial court is affirmed.
_____________________________
WILLIAM M. BARKER, JUDGE
CONCUR:
_____________________________
GARY R. WADE, Presiding Judge
_____________________________
J. CURWOOD WITT, JUDGE
3
The trial court questioned whether the evidence was sufficient to show that the appellant
possessed crack cocaine. The judge stated that if the case were based “just on the possession of
cocaine, it might very well be that I would just dismiss this warrant.”
4