State of Tennessee v. Rawshard J. Smith

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 28, 2004
STATE OF TENNESSEE v. RAWSHARD J. SMITH
Direct Appeal from the Criminal Court for Hamilton County
Nos. 234611 and 238674 Rebecca J. Stern, Judge
No. E2004-00573-CCA-R3-CD - Filed November 10, 2004
The Defendant, Rawshard J. Smith, pled guilty to possessing less than .5 grams of cocaine. He was
sentenced as a standard Range I offender to three years on intensive probation. Following a
revocation hearing, the trial court revoked the Defendant’s probation and ordered him to serve the
remainder of his sentence in confinement. The Defendant now appeals. We affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and JOHN
EVERETT WILLIAMS, JJ., joined.
Ardena J. Garth, Public Defender, Chattanooga, Tennessee, for the appellant, Rawshard J. Smith.
Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
Bill Cox, District Attorney General; and Mary Sullivan Moore, Assistant District Attorney General,
for the appellee, State of Tennessee.
OPINION
The Defendant was ordered to begin serving his three-year sentence on intensive probation
on January 17, 2002. On August 14, 2002, a Probation Violation Report was filed against the
Defendant, alleging that he had violated the terms of his probation by being unemployed; not being
home for curfew checks; reporting sporadically to the probation office; being past due in paying his
supervision fees; and failing to make any payments on his fine. On May 19, 2003, the trial court
filed an order dismissing the Report “[f]or good and sufficient reasons . . . and on motion of the
State.” The Defendant was thereupon placed back on intensive probation for an additional six
months.
On September 25, 2003, a second Probation Violation Report was filed against the
Defendant. A hearing was held on February 2, 2004, at which Ms. Mildred Taylor, the Defendant’s
probation officer, testified. Ms. Taylor stated that the Defendant was not at home at curfew checks
and was reporting “sporadically.” Ms. Taylor testified that the last time the Defendant reported was
on August 12, 2003. The Defendant further got fired from his job. The Defendant’s girlfriend told
Ms. Taylor that the Defendant was no longer living at their address. Ms. Taylor testified that she did
not think the Defendant was taking his probation seriously and that, in her opinion, the Defendant
was not “suited” for probation. Ms. Taylor recommended that the Defendant’s probation be revoked
and he be sent into confinement. On cross-examination, Ms. Taylor admitted that the Defendant had
not been arrested while he was under her supervision, and passed a drug screen.
The Defendant also testified. He stated that he had not used any drugs in over a year. He was
not at home during curfew checks because he was fighting with his girlfriend. He had a car accident
in late August, missed several days of work, and lost his job as a result. In November 2003, after
the instant Report was filed, he was convicted of criminal trespass. He stated that he was charged
because he crossed a roadblock, but he needed to visit a sick aunt. The Defendant testified that, if
he was able to continue his probation, he would move in with his grandmother.
After hearing this testimony, the trial judge ruled as follows:
I find that [the Defendant] has violated his probation in the following ways:
He missed several curfews. When the probation officer went to his home listed, the
girl friend told them he had moved. [The probation officer] had not received any
new address on him. I find that he stopped reporting in August ‘03. He stopped
going to work and got fired from his job. That he has not paid his fines and fees as
required and that he has a new criminal conviction for criminal trespassing.
Therefore, his probation is revoked.
The Defendant now appeals, claiming that “the record does not contain sufficient evidence to support
revocation of” his probation.
A trial judge is vested with the discretionary authority to revoke probation if a preponderance
of the evidence establishes that a defendant violated the conditions of his or her probation. See
Tenn. Code Ann. §§ 40-35-310, -311(e); State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). “The
proof of a probation violation need not be established beyond a reasonable doubt, but it is sufficient
if it allows the trial judge to make a conscientious and intelligent judgment.” State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991).
When a probation revocation is challenged, the appellate courts have a limited scope of
review. This Court will not overturn a trial court’s revocation of a defendant’s probation absent an
abuse of discretion. See Shaffer, 45 S.W.3d at 554. For an appellate court to be warranted in finding
that a trial judge abused his or her discretion by revoking probation, “there must be no substantial
-2-
evidence to support the conclusion of the trial court that a violation of the conditions of probation
has occurred.” Id.
The Defendant’s contention is without merit. The record supports the trial court’s findings
that the Defendant violated the terms of his probation in several respects. We conclude that the trial
court did not abuse its discretion in ordering revocation of probation and ordering that the balance
of the sentence be served in confinement.
Accordingly, the judgment of the trial court is affirmed.
___________________________________
DAVID H. WELLES, JUDGE
-3-