State of Tennessee v. Damarcus C. Nelson

06/26/2019
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 7, 2019
STATE OF TENNESSEE v. DAMARCUS C. NELSON
Appeal from the Circuit Court for Dyer County
No. 16-CR-358 Lee Moore, Judge
No. W2018-00951-CCA-R3-CD
The Defendant, Damarcus C. Nelson,1 appeals as of right from the Dyer County Circuit
Court’s revocation of his probation and reinstatement of the remainder of his four-year
sentence for solicitation of aggravated assault. On appeal, the Defendant asserts that the
trial court abused its discretion because the State failed to establish by a preponderance of
the evidence that he violated the law or participated in gang-related activity, and he
maintains that the remaining “technical” violations did not warrant incarceration.
Following our review, we affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL and JAMES CURWOOD WITT, JR., JJ., joined.
Matthew A. Beaird, Dyersburg, Tennessee, for the appellant, Damarcus C. Nelson.
Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Danny H. Goodman, Jr., District Attorney General; and Karen W.
Burns, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
The Defendant was initially indicted for attempted first degree murder. See Tenn.
Code Ann. § 39-13-202. On May 30, 2017, he pled guilty to solicitation of aggravated
assault as a Range II, multiple offender and received a four-year sentence to be served on
supervised probation. See Tenn. Code Ann §§ 39-12-102, -13-102. This sentence was to
1
The Defendant’s name is spelled alternatively in the record as “Demarcus Nelson.” We will use the
name as spelled in the indictment.
be served consecutively “to all other offenses.” It was also noted that the Defendant had
“two priors” of facilitation of second degree murder which occurred on the same day.
Thereafter, the Defendant’s probation officer filed a probation violation report
against the Defendant on January 30, 2018. It was alleged therein that the Defendant
violated Rule 1 of his probation by failing “to obey the law” due to his January 4, 2018
arrest for possession of marijuana with the intent to sell and for tampering with evidence.
The trial court issued a warrant that same day.
The Defendant’s probation officer filed an updated violation report on May 10,
2018. This time it was alleged that the Defendant had violated the conditions of his
probation by not providing “proof of employment, seeking employment[,] or disability”
for the months of January to April 2018 violating Rule 4; by not reporting to his
probation officer during February or March of 2018 violating Rule 6; by not paying his
arrearages of fines, court costs, or supervision fees totaling $862 violating Rule 9; and by
being an active member of a gang known as the Kitchen Crips violating Rule 14.
At the subsequent revocation hearing, the Defendant’s probation officer, Tamiko
Manns,2 testified and discussed the Defendant’s violations. She reviewed the two
violation reports and the details presented therein. Officer Manns noted that at the
beginning of the Defendant’s supervision on March 30, 2017, she reviewed the
conditions of the Defendant’s probation with him and said that he signed a copy of those
rules. His probation order was entered as an exhibit.
Officer Manns stated in the history of supervision section on the Defendant’s first
violation report that the Defendant had previously tested positive for marijuana on July
13, 2017, and that he was referred for an alcohol and drug assessment. According to
Officer Manns, the Defendant reported for that assessment, and it was determined at that
time that he did not have a drug problem.
Officer Manns stated that the Defendant had not provided any proof of a
“legitimate source of income” since his probation commenced on May 30, 2017. Officer
Manns further testified that she had not excused any of the Defendant’s missed meetings.
She noted that the Defendant had provided proof that he was seeking employment and
had paid some of his fines and court costs in the past. Officer Manns agreed that she
would normally impose sanctions short of jail time for the Defendant’s “technical”
violations, which violations did not start until after the Defendant’s January 4, 2018
arrest.
2
The probation officer’s first name is spelled “Tameka” in the transcript from the revocation hearing.
However, we will use the spelling from the violation report that she prepared.
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Dyersburg Police Department Officers Mason McDowell and Sterling Wright
testified regarding the Defendant’s drug and gang-related activity while on probation.
Officer McDowell was qualified as an expert in dealing with “street crime and the drugs
and gang . . . information[.]”
These officers testified that, on August 16, 2017, they were cruising in Officer
Wright’s unmarked police vehicle in the area of the Defendant’s residence at 1641
Countryman Street. Based upon their prior interactions with the Defendant, they both
believed that the Defendant resided at this address with his girlfriend, Contrera
Crittenden. The Defendant and Ms. Crittenden had been together for a long time, had
several children together, and had lived together at each residence “until just most
recently.” Officer McDowell stated that he would not “doubt” that Ms. Crittenden kept
“everything in her name.”
As the officers were passing the Defendant’s residence, they observed a man, later
identified as Broderick Lowe, holding something in his hand, “jump[] off the porch and
r[u]n across the street in front of [their] vehicle.” Mr. Lowe approached a car sitting in a
church parking lot and engaged in what appeared to be a hand-to-hand transaction with
one of the vehicle’s four occupants. Based upon their experience, the officers believed
that a drug transaction had occurred, so they stopped to investigate. According to Officer
McDowell, when they spoke with Mr. Lowe, Mr. Lowe was attempting to conceal a
plastic bag containing what appeared to be marijuana.
Being aware of the Defendant’s probation status, Officer McDowell approached
the residence and knocked on the front door. A female responded, “Who is it?” When
Officer McDowell replied “the police department,” he heard the deadbolt lock and
“scrambling, moving, moving away from the door.” The Defendant opened the door
after “couple of minutes” had passed, and Officer McDowell immediately smelled the
odor of marijuana. Officer McDowell believed the marijuana was “raw” or “not burned.”
Officer Wright described the smell as “very strong” and classified it as “lab marijuana.”
When Officer McDowell asked the Defendant about the smell, the Defendant replied
“something to the effect of yeah, they just smoked a blunt.”
Officer McDowell stated that he explained to the Defendant that he was on
probation, that his probation order allowed them to search, and that refusal to allow them
to search was a violation of his conditions. However, according to Officer McDowell,
the Defendant “vehemently refused” their request to search the residence, although he
“never physically refused” or hindered the officers from searching. Based upon the
Defendant’s actions, Officer McDowell believed “that there was in fact contraband in the
house.”
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As Officer McDowell was waiting at the front door with the Defendant for other
officers to arrive to assist with the search, Officer McDowell heard the toilet inside the
residence being flushed, and he believed that “evidence was being destroyed.” Officer
McDowell saw Ms. Crittenden emerge from the bathroom. After Ms. Crittenden
confirmed that she had flushed the toilet, Officer McDowell “ordered her” to come “back
towards the living room.” Shortly thereafter, Officer McDowell went into the bathroom
and “observed marijuana . . . still in the bowl and . . . the tank was still filling back up at
that time.” Officer McDowell found more marijuana hidden in “the trap” of the toilet.
Officer McDowell testified that he found approximately three grams of marijuana inside
the toilet and that the marijuana was “higher grade marijuana.”
Upon further search of the residence, Officer McDowell discovered digital scales
in the kitchen on the counter in plain view. According to Officer McDowell, the scales
“had green leafy residue” on them. The scales were also “tiny,” which also indicated to
Officer McDowell that they were “used to weigh[] narcotics for sale.” Officer McDowell
also located a Kansas City Royals baseball cap in the Defendant’s kitchen “on a separate
countertop but near the digital scales.”
Officer McDowell stated that the Defendant was searched and that $1,500 cash
was found on his person. According to Officer McDowell, he had known the Defendant
since the Defendant was a juvenile; he had spoken with the Defendant on numerous
occasions; and he “couldn’t say that [the Defendant] ha[d e]ver held a legitimate job.”
Two cars were found in the driveway—one known to be driven by the Defendant, and the
other by Ms. Crittenden. Officer McDowell said that he would not be “shocked” to know
that both cars were owned by Ms. Crittenden, explaining that this was likely done to
avoid seizure of the Defendant’s vehicle due to drug-related activities. Photographs of
these two cars were entered into evidence.
Furthermore, Officer McDowell testified that Ms. Crittenden gave a statement to
police. Ms. Crittenden “admitted that she did . . . flush marijuana that was . . . in excess
of one-half ounce” and “that all of the marijuana in the residence was hers.” She claimed
that the Defendant did not smoke marijuana. Ms. Crittenden also informed him that Mr.
Lowe had visited the home, although she did not say when he arrived or why. Officer
McDowell confirmed that Ms. Crittenden was also charged for marijuana possession and
tampering with evidence.
Officer McDowell testified that based upon information he had gathered “over the
years,” he believed that the Defendant was likely a member a gang known as the
“Kitchen Crips” and “87 Street.” Officer McDowell stated that he received his
“information from a number of sources,” which included confidential informants, social
media sites, and “surveillance on the streets.” Additionally, Officer McDowell noted that
he and his colleagues obtained information through “probation and parole searches,”
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searches of residences and cell phones, and information from the Tennessee Department
of Corrections (“TDOC”).
Officer McDowell testified that the Kansas City Royals baseball cap found in the
Defendant’s kitchen, which had the letters “KC” on it, was gang insignia used by the
Kitchen Crips. A picture of this baseball cap was entered into evidence as Exhibit 4.
Additionally, according to Officer McDowell, gang insignia for the Kitchen Crips
included use of the color blue and use of hand signs for the letters K and C, as well as the
number 87. Officer McDowell had also seen the Defendant frequenting a bar known for
gang activity. Officer McDowell found further demonstration of the Defendant’s gang
affiliation on social media sites, and he took “screenshots” of this activity.
Officer McDowell then stated that he had taken a total of five screenshots from the
Defendant’s Facebook account, which the State sought to have him review for the trial
court. The Defendant objected to the introduction of the screenshots, arguing that they
were not relevant because they did not have dates on them and therefore might have been
taken before the Defendant began his probation on May 30, 2017.
Officer McDowell then testified concerning his knowledge of each photograph.
Exhibit 6 was a photograph of four men that was taken in the kitchen of the Defendant’s
residence at 1641 Countryman Street. The picture was captioned, “It can be 4 of us and
we move like we got 87 n---as behind us.” Officer McDowell was familiar with the four
men in the picture and was confident that at least three of the men, including the
Defendant, were Kitchen Crips members. Officer McDowell pointed out that one of the
men was wearing a baseball cap with the letters “KC” and that another man was wearing
a blue bandanna. The picture was undated.
Exhibit 7 reflected that two Facebook users wished the Defendant “Happy Crip
Day” or “happy C day” on November 30, 2017. The Defendant was “tagged” in this
post, and it was on his Facebook “page.” Moreover, the Defendant liked one of the posts.
Officer McDowell testified that this was how members of the gang wished each other
happy birthday, explaining that it would be disrespectful to “a Crip” to be wished a
“Happy B Day,” which was associated with another gang known as the “Bloods.”
According to Officer McDowell, the Defendant could have hidden, removed, or deleted
the post from his page.
Exhibit 8 was a “club photo” of four men, including the Defendant. Officer
McDowell opined that all four men were members of the Kitchen Crips. The picture was
captioned, “Everywhere we go they know we run the city K Gang or don’t Bang.”
Officer McDowell also opined that the hand signs being used by the men were insignia of
the Kitchen Crips. Exhibit 8 did not reflect a date.
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Exhibit 9 depicted a photograph posted to the Defendant’s Facebook page by
another user on January 3, 2018. The Defendant was pictured with someone wearing a
Kansas City Royals jersey and both men were making gang signs with their hands. The
caption above the photograph read, “Screaming free my n---a til I see my n---a that way.”
According to Officer McDowell, the user who posted this wanted the Defendant freed
from jail because the Defendant had just been arrested on the marijuana possession
charge. In addition, Officer McDowell believed that this post was made by “[a]nother
Kitchen Crip.”
Regarding Exhibit 10, the Defendant posted a photograph on Facebook on
February 14, 2018, picturing himself wearing a blue Washington Bullets shirt. The word
“Kcoolin” was written above the photo. According to Officer McDowell, the color blue
and “Kcoolin” signified membership in the Kitchen Crips gang. Officer McDowell
explained that the Defendant was referring to the Kitchen Crips, and had the Defendant
not been a member himself, he would have faced retaliation for using their symbols.
Officer McDowell also testified about Exhibit 11, which was a photograph seized
during the search of another gang member’s residence. The photograph was of five men
and included the Defendant. Officer McDowell confirmed that the picture was seized
prior to the Defendant’s going on probation. According to Officer McDowell, this image
was consistent with the Defendant’s being involved in gang activity.
Regarding Exhibits 6 and 8, the trial court stated that there was insufficient
evidence of when these photos were taken but noted that these photos showed the
Defendant was involved in gang-related activity. These pictures were marked for
identification purposes only. The trial court admitted the posts that had dates on them
into evidence—Exhibits 7, 9, and 10. It also admitted Exhibit 11 for the limited purpose
of establishing the Defendant’s awareness of gang activity.
Following the proof, the trial court found that the Defendant had violated the
conditions of his probation and ordered the Defendant to serve the balance of his four-
year sentence in confinement. The trial court first addressed the Defendant’s alleged
violation of Rule 1 by failing to obey the law, noting that the Defendant had not yet been
convicted of any crime. The trial court found that the officers initially “saw something
that led them to believe that there was a drug transaction going on from [the Defendant’s]
house and out across the street.” When the officers knocked on the Defendant’s door,
there was “a short delay” before the door was opened, and then both officers smelled “the
strong odor of . . . marijuana[.]” Ultimately, they found marijuana in the Defendant’s
residence, along with “a digital scale that [was] used for weighing contraband for sale.”
The trial court observed that the Defendant had no job history, that the Defendant had
$1,500 cash on his person, and that he had already failed a drug test while on probation.
The trial court also noted that the Defendant told Officer McDowell that “they [had] just
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smoked a blunt,” recognizing that the Defendant may have been referencing his own or
someone else’s smoking in the house. The trial court determined that the Defendant’s
having marijuana in the home was a violation on its own. The trial court further noted
that evidence was being destroyed in the home, although Ms. Crittenden admitted that
she was the one flushing the marijuana down the toilet.
Next, the trial court examined the Defendant’s alleged violation of Rule 14 by
participating in gang-related activities. The trial court relayed Officer McDowell’s
testimony identifying the Defendant as being part of the Kitchen Crips gang and
concluded that there was “ample evidence” supporting this conclusion. Also, in making
this determination the trial court referenced each of the photographs presented by the
State to Officer McDowell at the revocation hearing:
Exhibit 4 is a picture of the Kansas City Royals cap with the KC for, in this
situation, according to the testimony of the officer, for Kitchen Crips
involved. . . . These other things, the Exhibit 6 is a picture of—Again, that
in and of itself does not necessarily create a violation but, it certainly shows
that you’re part of a gang and involved in gang activity. That’s the same
thing as with Exhibit 7. These are not things that you have posted but
they’ve been posted on your Facebook and it’s certainly indicative of, of
gang involvement. The same thing with Exhibit 8, you know, I don’t have
any idea when these pictures were made. Those pictures in and of itself
don’t indicate you’ve violated your probation if these pictures were taken
before May 30 of 2017, but it shows very clearly that you’re involved in the
Kitchen Crips. The same thing with Exhibit 9 and Exhibit 10 which is the
picture of the Washington Bullets and the Washington Bullets in and of
itself isn’t significant, but the fact that it’s a royal blue the color for your
gang, it is significant and it is relevant to that issue. Same is true with
Exhibit 11 and again the background for this is a royal blue color.
The trial court concluded, “What concerns me more than anything, is the fact that you
indicate[d] that you will not participate in criminal street gang-related activities and you
are obviously doing that and we can’t have that.”
The trial court then discussed the Defendant’s alleged “technical” violations.
Regarding the Defendant’s failure to pay fines, court costs, or supervision fees, the trial
court concluded that the Defendant had violated this condition of his probation but
observed that it had never revoked someone based on this condition alone. However, the
trial court continued that it would be “a little difficult . . . not to violate [the Defendant] in
this situation because [he had] not paid . . . when [he] had $1,500 in [his] pocket, which
ma[de] that appear to be a willful violation.” The trial court also found that the
Defendant was “[o]bviously” not “work[ing] at a lawful occupation to support his
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dependents” but was instead “supporting them with drug money.” The trial court
averred, “There’s not enough evidence for me to find that you are in violation . . .
because of that, but there is strong evidence that with no job and $1,500 in cash in your
pocket that there is drug activity going on which is a violation of your probation.”
Finally, the trial court expressed that the Defendant’s failure to report in February and
March of 2018 after he was arrested was “a very important violation.”
After the trial court found the Defendant in violation of his probation, the State
moved to dismiss the underlying charges of possession of marijuana with the intent to sell
and tampering with evidence. The Defendant filed a timely notice of appeal. The case is
now before us for review.
ANALYSIS
The Defendant contends that the trial court abused its discretion by revoking his
probation because the State failed to establish by a preponderance of the evidence that he
violated the law or participated in gang-related activity, and he maintains that the
remaining “technical” violations did not warrant incarceration. The State responds that
the trial court properly exercised its discretion in revoking the Defendant’s probation and
ordering him to serve the remainder of his four-year sentence in confinement.
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. Tenn. Code
Ann. § 40-35-311(e). If the trial court revokes the probation, it has the right to “extend
the defendant’s period of probation supervision for any period not in excess of two (2)
years,” “commence the execution of the judgment as originally entered,” or “[r]esentence
the defendant for the remainder of the unexpired term to any community-based
alternative to incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e). In a
probation revocation hearing, the credibility of the witnesses is determined by the trial
court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Furthermore, the decision to revoke probation is in the sound discretion of the trial
judge. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); Mitchell, 810
S.W.2d at 735. The judgment of the trial court to revoke probation will be upheld on
appeal unless there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). To find an abuse of discretion in a probation revocation case, “it must be
established that the record contains no substantial evidence to support the conclusion of
the trial judge that a violation of the conditions of probation has occurred.” Id. (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)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim.
App. 2011). Such a finding “‘reflects that the trial court’s logic and reasoning was
improper when viewed in light of the factual circumstances and relevant legal principles
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involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).
The Defendant argues that the State failed to prove by a preponderance of the
evidence that he violated his probation by possessing marijuana with the intent to sell or
by tampering with evidence for flushing marijuana down the toilet. Specifically, the
Defendant notes that “[t]he only marijuana on the property was found in the toilet where
[the] Defendant’s girlfriend was located and she later admitted that the marijuana was
hers and that she had tried to flush it”; that the State moved to dismiss the charges against
the Defendant after his probation was revoked; that “there are many legitimate, legal
reasons” for someone to have $1,500 cash on their person; and that he was not charged
with conspiracy or facilitation.
It is generally recognized that in order to prevail in a revocation proceeding based
upon allegations of criminal misconduct, the State must show by a preponderance of the
evidence that the defendant violated the law. See State v. Catherin Vaughn, No. M2009-
01166-CCA-R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim. App. June 14, 2010) (citing
State v. Michael Harlan Byrd, No. 01C01-9609-CC-00411, 1998 WL 216859, at *7
(Tenn. Crim. App. May 1, 1998)). Proof of a conviction is not necessary. Id. (citing
State v. Andrew B. Edwards, No. W1999-01095-CCA-R3-CD, 2000 WL 705309, at *3
(Tenn. Crim. App. May 26, 2000)).
Additionally, this court has previously held that a trial court may premise a
revocation upon proven allegations of a violation warrant, even if the charges have been
dismissed. State v. Delp, 614 S.W.2d 395, 396-97 (Tenn. Crim. App. 1980) (concluding
that revocation may be based upon criminal acts alleged in the violation warrant even
though the defendant was acquitted of charges for the underlying acts); State v. Agee
Gabriel, No. M2002-01605-CCA-R3-CD, 2004 WL 1562551, at *3 (Tenn. Crim. App.
July 12, 2004) (holding that “validity of the original warrant was not affected by the
dismissal of the criminal charges arising from the acts alleged in the warrant”); State v.
Larry D. Turnley, No. 01C01-9403-CR-00094, 1994 WL 714227, at *3 (Tenn. Crim.
App. Dec. 22, 1994) (“The fact that the [d]efendant was not convicted of any of the
offenses with which he was charged does not mandate dismissal of the probation
violation warrant.”). However, the State “must present sufficient facts at the revocation
hearing to enable the trial court to ‘make a conscientious and intelligent judgment as to
whether the conduct in question violated the law.’” State v. Jason L. Holley, No. M2003-
01429-CCA-R3-CD, 2005 WL 2874659, at *4 (Tenn. Crim. App. Oct. 25, 2005) (quoting
Harkins, 811 S.W.2d at 83 n.3). Based upon these authorities, we reject the Defendant’s
argument.
Here, it was alleged in the warrant that the Defendant failed to obey the law based
upon his arrest for possession of marijuana with the intent to sell and tampering with
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evidence. The State was required to prove that the Defendant violated the law by a
preponderance of the evidence based upon the criminal acts alleged in the warrant, not
present evidence establishing all elements of the charged offenses beyond a reasonable
doubt. Both Officers McDowell and Wright testified that on August 16, 2017, they were
passing the Defendant’s residence that he shared with his girlfriend, Ms. Crittenden,
when they observed Mr. Lowe emerge from the residence with something in his hand and
engage in a hand-to-hand transaction with an individual across the street. After
approaching Mr. Lowe, the officers observed Mr. Lowe in possession of a plastic bag
containing what appeared to be marijuana. Officer McDowell then knocked on the
Defendant’s front door. Following a slight delay, the door was opened, and both officers
smelled the strong odor of marijuana. The Defendant admitted that “they” had recently
smoked a blunt inside the home. Following a subsequent search, the officers found
digital scales with a green, leafy residue, marijuana inside the toilet, marijuana still
floating in the toilet, and $1,500 cash on the Defendant’s person. The fact that Ms.
Crittenden later claimed possession of the marijuana and admitted to flushing the
marijuana down the toilet was not dispositive of the issue, and the trial court was free to
reject that evidence as unbelievable. The trial court had sufficient evidence to conclude
by a preponderance of the evidence that the Defendant violated the law by possessing
marijuana on this occasion.
The Defendant also submits that the State failed to prove by a preponderance of
the evidence that he violated his probation by participating in gang-related activity. The
Defendant maintains “that the trial court abused its discretion in relying upon any of the
photos because there was not adequate proof of when the photos were taken.” Exhibits 6
and 8 were only admitted for identification purposes because it was not established when
those photos were taken. Exhibit 11 was admitted for the limited purpose of establishing
the Defendant’s awareness of gang activity.
In its ruling, the trial court referenced each of the photographs presented to Officer
McDowell at the revocation hearing. First, the trial court noted Exhibit 4, which was a
photo of Kansas City Royals baseball cap found in the Defendant’s home during the
search. This evidence was unrelated to any Facebook posts and was found next to the
digital scales with a green, leafy residue. Exhibit 7 reflected that two Facebook users
wished the Defendant “Happy Crip Day” or “happy C day” on November 30, 2017.
Officer McDowell, who was qualified as an expert on street crime and gang activity,
testified that this was how members of the gang wished each other happy birthday.
Moreover, the Defendant liked one of the posts. Exhibit 9 was a photo posted on January
3, 2018, wherein the Defendant was pictured with someone wearing a Kansas City
Royals jersey and both men were making gang signs with their hands. As for Exhibit 10,
the Defendant posted on Facebook on February 14 a picture of himself wearing a blue
Washington Bullets shirt with the word “Kcoolin” above the photo. According to Officer
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McDowell, the color blue and “Kcoolin” signified membership in the Kitchen Crips
gang.
Importantly, we note that “[t]he strict rules of evidence do not apply in a probation
revocation hearing.” State v. Justin E. Stinnett, No. E2012-02289-CCA-R3-CD, 2013
WL 3148724, at *3 (Tenn. Crim. App. June 19, 2013) (citing Barker v. State, 483 S.W.2d
586, 589 (Tenn. Crim. App. 1972)). Furthermore, the Defendant began his probation on
May 30, 2017, and was in control of the posts on his Facebook page after this time
regardless of when the photos were taken. The dates of the posts in Exhibits 7, 9, and 10
were established. In these three exhibits, Kansas City Royals paraphernalia, gang signs,
gang references, and the color blue can be seen. The other photographs were used to
show the Defendant’s awareness of gang activity and participation in the Kitchen Crips
gang. Officer McDowell opined that the Defendant was an active member of the Kitchen
Crips. Officer McDowell further stated that if the Defendant was not a member of the
gang himself, he would have faced retaliation for using their insignia. From all of this
evidence, there was sufficient evidence for the trial court to conclude by the
preponderance of the evidence that the Defendant was involved in gang-related activity
during his probation.
The Defendant does not dispute that he committed the “technical” violations listed
in the second violation report but submits that these violations alone did not warrant the
trial court’s decision to incarcerate. The trial court found that the failure to report was a
“very important violation.” The trial court also determined that it would be “a little
difficult . . . not to violate [the Defendant]” for failing to pay his fines, costs, or
supervision fees given the amount of cash found on him, which made the violation appear
to be a willful. Moreover, we have found that the trial court did not abuse its discretion
in determining that the Defendant was involved in drug and gang-related activity.
The Defendant concludes that “the trial court abused its discretion in fully
revoking” his probation “when sanctions or a partial revocation was warranted.” The
Defendant was originally indicted for attempted first degree murder and pled guilty to
solicitation of aggravated assault. He had a prior conviction for facilitation of second
degree murder. This court has repeatedly held that “an accused, already on [a suspended
sentence], is not entitled to a second grant of probation or another form of alternative
sentencing.” State v. Dannie Brumfield, No. M2015-01940-CCA-R3-CD, 2016 WL
4251178, at *3 (Tenn. Crim. App. Aug. 10, 2016) (quoting State v. Jeffrey A. Warfield,
No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999));
see also State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL
242351, at *2 (Tenn. Crim. App. Feb. 11, 2002). Because there was sufficient evidence
that the Defendant violated the terms of his release, the trial court, pursuant to its
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discretionary authority, properly revoked the Defendant’s probationary sentence and
ordered him to serve the balance of her four-year sentence in confinement.
CONCLUSION
Upon consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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