State of Tennessee v. James Erskin McCullough

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2005
STATE OF TENNESSEE V. JAMES ERSKIN MCCULLOUGH
Direct Appeal from the Criminal Court for Hamilton County
Nos. 242224, 242320 Rebecca J. Stern, Judge
No. E2004-02669-CCA-R3-CD - June 29, 2005
The Defendant, James Erskin McCullough, pled guilty to various offenses, and, while he was on
probation for these convictions, a probation violation report was filed, stating that the Defendant
failed to report to his probation officer and was arrested for theft. After a hearing, the trial court
revoked the Defendant’s probation, and it ordered that the Defendant serve the remainder of his
sentence in prison. On appeal, the Defendant contends that the evidence is insufficient to revoke the
Defendant’s probation, and, therefore, the trial court abused its discretion by revoking his probation.
After thoroughly reviewing the record and the applicable authorities, we affirm the trial court’s
judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which JAMES CURWOOD WITT ,
JR. and ALAN E. GLENN , JJ., joined.
Ardena J. Garth and Donna Robinson Miller, Chattanooga, Tennessee, for the Appellant, James
Erskin McCullough.
Paul G. Summers, Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William H. Cox, III, District Attorney General; and Bates W. Bryan, Jr., Assistant District Attorney
General, for the Appellee, State of Tennessee.
OPINION
I. Facts
On June 19, 2003, the Defendant entered guilty pleas to two counts of forgery, one count of
theft of property over $500.00, one count of theft of property over $1000.00, one count of theft of
property under $500.00, one count of identity theft, one count of criminal impersonation, and one
count of failure to appear. The trial court sentenced the Defendant to an effective sentence of nine
years, as a Range III offender, to be served on intensive probation. On June 21, 2004, a probation
violation report was filed, alleging that the Defendant failed to report to his probation officer and that
he was arrested for theft.
The following evidence was presented at the Defendant’s probation revocation hearing: Dee
Massey, the Defendant’s Tennessee probation officer, testified that, after the Defendant was
convicted in Tennessee, he went to Georgia because he had another case pending there. Massey
testified that her office monitored the Defendant’s case and his incarceration time while he was in
Georgia. She stated that she sent the Defendant letters, while he was in Georgia, notifying him of
his responsibility to report to the State of Tennessee upon his release from custody in Georgia.
Massey testified that the Defendant did not report to her or to her office upon his release from
custody in Georgia. She said that a note in the Defendant’s file indicated that the Defendant’s
probation officer from Georgia contacted her office. That Georgia officer left a message that the
Defendant was “reporting” in Georgia and was going to live at a halfway house in Chattanooga.
Massey stated that it was her office’s understanding that the Defendant would return to
Tennessee for “dual-supervision,” where he would be a probationer from Tennessee and be “an
interstate compact” probationer from Georgia. She stated that the Defendant did not report for
supervision in Tennessee. Massey testified that an officer contacted the halfway house where the
Defendant was supposed to be living, but he was not there, and Massey’s office discovered that the
Defendant had been arrested on a charge of theft under $500.00. She stated that she filed a probation
violation, and the trial court issued a capias for the Defendant. She testified that she was unaware
that the Defendant had two theft convictions after she filed the probation violation form because she
transferred to a different office. She concluded that the Defendant was supposed to be on intensive
probation, and he never reported to her office after he was released from Georgia.
The Defendant testified that, after his release from the Georgia Detention Center, he was
transferred to a facility in Rome, Georgia, so that he could pay his court costs and fines. He said that
he was then transferred to a work release program in White County, Georgia. The Defendant
testified that he was then transferred to a diversion program in Floyd County, Georgia, where he was
required to get a job to pay all court costs and fines before he was released. He said that he was then
transferred to Ringgold, Georgia, where he was required to prove that he had satisfied his costs and
fines. He stated that, at that point, he believed that “everything was complete” because he showed
a receipt for all of his costs and fines to the State of Georgia. The Defendant testified that he then
went to Chattanooga, Tennessee, and he learned that his father had been murdered. He stated that
he applied to live at a halfway house, but the Hephzibah Ministry did not have space for him.
The Defendant testified that he began using drugs again, he pled guilty to two theft charges
in General Sessions Court, and he was, at the time of the hearing, about halfway through serving
both of those sentences. He testified that, when he pled guilty to the theft charges, he made
arrangements to be admitted into the VA hospital. He said that the General Sessions Court Judge
agreed to suspend the last month of his sentence to allow him to go to treatment at the VA hospital.
The Defendant testified that, while incarcerated, he was accepted into a drug therapy program, and,
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after that program, he would still be able to be admitted to the VA hospital on his VA benefits. He
stated that he has employment arranged, upon his release, if granted probation, as a cook at a fast
food restaurant. The Defendant testified that he is veteran from the Vietnam War, and he admitted
that he has a drug problem for which he has not received treatment, but he stated that he used drugs
to deal with his post-traumatic stress disorder. He said that he also suffers from other medical
problems. The Defendant testified that he is the only family member to support his children, and he
requested that the court place him on probation.
On cross-examination, the Defendant admitted that he never reported for intensive probation.
He stated that, when he was released, he looked for treatment programs. He admitted that he was
convicted of theft charges. He said that he did not receive drug treatment or alcohol counseling
while in Georgia. The Defendant stated that he has not received counseling before, and he said he
will be able to get treatment that he needs from the VA hospital.
After hearing the evidence, the trial court stated:
[The Defendant] has a long record. He also has violated probation by failing to
report to [the] probation office, being convicted of theft this August and by his own
admission getting caught up in drugs. Therefore, his probation is revoked, his
sentences are ordered into execution with credit for time served.
The Defendant appeals the trial court’s order, contending that the trial court erred when it revoked
his probation.
II. Analysis
The Defendant argues that the trial court abused its discretion in revoking his probation
because insufficient evidence was presented that he violated his probation, and he argues that there
is no evidence that he received notification from his probation officer of his responsibility to report
in Tennessee. The State counters that the evidence presented was sufficient to warrant the revocation
of the Defendant’s probation.
When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke probation.
Tenn. Code Ann. § 40-35-311(e) (2003). The decision to revoke probation is in the sound discretion
of the trial judge. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). 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, the record must be void of any substantial evidence that would support
the trial court’s decision that a violation of the conditions of probation occurred. Id.; State v. Grear,
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568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
Proof of a probation violation is sufficient if it allows the trial court to make a conscientious and
intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984).
We conclude that the trial court did not abuse its discretion when it found that sufficient
evidence was presented that the Defendant violated his probation. The Defendant’s probation officer
notified the Defendant several times of his responsibility to report to Tennessee for intensive
probation. The Defendant did not state that he did not know or understand this responsibility, and
he admitted that he never reported for intensive probation. In addition, the Defendant admitted that
he was arrested and convicted for two theft charges after he was released from his obligations with
the State of Georgia. Thus, we conclude that the trial court did not abuse its discretion by
determining that the State proved, by a preponderance of the evidence, that the Defendant violated
his probation. This issue is without merit.
III. Conclusion
Based on the foregoing reasoning and authority, we affirm the judgment of the trial court.
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ROBERT W. WEDEMEYER, JUDGE
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