State of Tennessee v. Bykeem Bret Jenkins ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 30, 2010
STATE OF TENNESSEE v. BYKEEM BRET JENKINS
Appeal from the Circuit Court for Blount County
No. C-17078 David R. Duggan, Judge
No. E2009-01755-CCA-R3-CD - Filed April 14, 2010
The defendant, Bykeem Bret Jenkins, pleaded guilty in 2007 in the Blount County Circuit
Court to possession of marijuana with intent to deliver, a Class E felony, and received a two-
year suspended sentence. In response to a timely petition for violation of the defendant’s
probation, the trial court revoked the probation and ordered the defendant to serve his
sentence in the Department of Correction. The defendant appeals from the order of
confinement. We affirm the trial court’s order.
Tenn. R. App. P. 3; Judgment of the Circuit Court Affirmed
J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and C AMILLE R. M CM ULLEN, JJ., joined.
Mack Garner, District Public Defender (at trial); and J. Liddell Kirk, Knoxville, Tennessee
(on appeal), for the appellant, Bykeem Bret Jenkins.
Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; and Tammy Harrington and Kathy Aslinger, Assistant District Attorneys General,
for the appellee, State of Tennessee.
OPINION
The petition for revocation of the defendant’s probation alleged that he was
arrested for aggravated robbery, simple possession of a controlled substance, evading arrest,
and possession of a controlled substance with intent to sell or deliver. The petition also
alleged that the defendant twice admitted using drugs while on probation, that he failed to
obtain a drug assessment as directed by the probation officer, that he was delinquent in
paying his probation fees, and that he owed $2,580 in court costs.
In the probation revocation hearing, the probation officer testified to the
violations. He testified that the defendant did report his arrests. On cross-examination, the
officer testified that the defendant reported to him “[f]or the most part” and that the
defendant had been attempting to pay his costs and fees in amounts of five or 10 dollars.
Two Blount County sheriff’s deputies testified that in 2008 they stopped the
defendant’s vehicle for speeding. During the traffic detention, the defendant stood outside
his vehicle, and the officers found a plastic bag of marijuana on the ground where the
defendant had been standing. They both testified that when they ordered the defendant to
submit to arrest and handcuffing, the defendant ran away. The officers apprehended the
defendant, searched him, and found two plastic bags containing marijuana along with unused
plastic bags in the defendant’s jacket.
The defendant testified that he was 32 years of age and had a tenth grade
education. He admitted using marijuana while on probation. He acknowledged that the
probation officer ordered him into a “drug assessment program” but stated that he did not
follow the directive because he lacked a vehicle. He stated that his aggravated robbery
charge had not been resolved, and he maintained his innocence of that charge. He admitted
running from the deputies during the 2008 traffic stop but denied that he had possessed any
marijuana as claimed by the deputies. He testified that he had recently entered a drug
assessment program and a graduate equivalency program, but he acknowledged that his
ability to attend the drug program was limited because he had lost his driver’s license due to
noncompliance with the financial responsibility law. He testified that he had difficulty
finding work and supported himself by “staying with female friends.” He agreed that twice
he had admitted to the probation officers that he had used marijuana. He affirmed his claim
that the officers planted marijuana on him during the 2008 traffic stop, despite his admission
in a pretrial statement that the marijuana was his.
The trial court found that the defendant was not credible and that he had
“engaged in a material violation of the terms of [his] probation” based upon the 2008
possession of marijuana, evading arrest, his drug usage while on probation, his failure to pay
probation fees and court costs, and his failure to obtain a drug assessment. The court
disregarded the new arrests for aggravated robbery and simple possession. The court
revoked the defendant’s probation and ordered him to serve his sentence in the Department
of Correction, subject to credit for time served.
On appeal, the defendant claims that the trial court erred in ordering him to
serve his sentence in confinement. We disagree.
A trial court may revoke a sentence of probation upon a finding by a
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preponderance of the evidence that the defendant has violated the conditions of his release.
T.C.A. § 40-35-311(e) (2006); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980).
A revocation will be upheld absent a showing that the trial court abused its discretion. State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Relief will be granted only when the trial
court’s “‘logic and reasoning was improper when viewed in light of the factual circumstances
and relevant 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)). Upon finding a violation, the trial
court may “revoke the probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered.” T.C.A. § 40-35-311(e).
In the present case, the trial court acted well within its discretion in ordering
the defendant to serve his sentence in confinement. The record showed that, despite his
being placed on probation for possession of marijuana, the defendant continued to possess
and use the controlled substance. Accordingly, the trial court was warranted in ordering
confinement, and we affirm its order.
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JAMES CURWOOD WITT, JR., JUDGE
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