         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                               Assigned on Briefs May 6, 2003

                 STATE OF TENNESSEE v. LIONEL CHAMPION

                  Direct Appeal from the Circuit Court for Madison County
                    Nos. 01-140, 01-141, 01-224    Roger A. Page, Judge



                   No. W2002-02216-CCA-R3-CD - Filed September 4, 2003


The defendant appeals the trial court’s revocation of his probation. While on probation, the
defendant had been arrested for aggravated robbery. He contends the evidence was insufficient to
support the revocation. The burden required to revoke probation is by the preponderance of the
evidence, not beyond a reasonable doubt. The alleged victim of the aggravated robbery testified at
the revocation hearing, and his testimony was found credible by the trial court. We affirm the trial
court’s revocation of the defendant’s probation.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and JOE
G. RILEY, JJ., joined.

Benjamin C. Mayo, Jackson, Tennessee, for the appellant, Lionel Champion.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
James G. (Jerry) Woodall, District Attorney General; and James W. Thompson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        In November of 2001, the defendant, Lionel Champion, pled guilty to attempted aggravated
burglary, vandalism under $500, vandalism over $1000, and simple possession of a Schedule II
controlled substance. The defendant was sentenced to an effective sentence of eight years. He was
given 90 days jail credit for time served and placed on intensive probation.

        In March of 2002, the defendant was notified that his probation may be revoked due to new
misdemeanor charges, specifically, leaving the scene of an accident and failure to yield to blue lights,
as well as a new felony charge of aggravated robbery.
       A probation violation hearing was held in August of 2002. The State called the alleged
victim of the aggravated robbery to testify. In essence, the alleged victim1 testified that, while
walking, the defendant drove by, stopped, got out of the car, pointed a gun at the victim, and
demanded money. According to the alleged victim, two other persons were with the defendant.

         The trial court stated the following after the hearing:
         Let me say for the record that this finding is based on a preponderance of the
         evidence and not beyond a reasonable doubt. Based on the testimony I’ve heard and
         my assessment of the credibility of the witnesses, I’m going to opine that Mr.
         Champion has violated the terms of his probation in a substantial way for the
         following reasons: I find by a preponderance of the evidence he was in possession of
         a handgun. And as to this alleged aggravated robbery, I’m going to find the State has
         proved by a preponderance of the evidence that he committed conduct unbecoming
         good citizenship. Therefore, he’ll be revoked to serve his sentence.

       The defendant contends no substantial evidence supports the trial court’s conclusion that the
defendant violated his probation by being in possession of a handgun and committing aggravated
robbery.

                                                     Analysis

         If a trial court finds by a preponderance of the evidence that a defendant has violated a
condition of the defendant’s probation, then the trial court may revoke probation. Tenn. Code Ann.
§ 40-35-311(e). On appeal, this Court may reverse such a revocation only upon the trial court’s
abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Such discretion is abused
only when the record fails to contain substantial evidence to support the trial court’s conclusion that
a violation occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof
of a violation need not be established beyond a reasonable doubt. The evidence must only show that
the trial court exercised a conscientious and intelligent judgment, as opposed to acting arbitrarily.
Gregory, 946 S.W.2d at 832; see also State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

        The trial court revoked the defendant’s probation upon finding, by a preponderance of the
evidence, that the defendant violated the law on March 5, 2002, by being in possession of a handgun
and by committing conduct unbecoming good citizenship. The trial court retained the discretionary
authority to order the defendant to serve his original sentences in confinement upon revocation. See
State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

       The defendant relies upon State v. Smith, No. M2002-00553-CCA-R3-CD, 2003 LEXIS 38
(Tenn. Crim. App. Jan. 21, 2003) (no app. filed), in which he contends there “must be more than a
‘mere accusation’ if the grounds for revocation is the commission of a new offense.” The defendant


         1
          Thro ughout the op inion I refer to the witness as the “alleged victim,” thereby affording this defendant the
presumption of innocence he deserves relative to the felony charge he is facing.

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argues that the sworn testimony of the alleged victim was the equivalent of a “mere accusation.” He
further argues that the absence of other testimony or reports of law enforcement officers; the absence
of any physical evidence recovered from the search of the defendant, his girlfriend, and his car; and
the absence of any corroborating witness makes the instant case analogous to Smith.

       In Smith, this Court held that a revocation could not occur when the only evidence of the
commission of a new offense was the introduction of an arrest warrant or indictment as they stood
as a “mere accusation.”

         In the instant case, the probation officer, the alleged victim, and the defendant testified. The
trial court specifically found the alleged victim’s testimony credible. The defendant’s argument that
the State had to do more in producing corroborating witnesses, physical evidence, reports of law
enforcement officers, or evidence recovered from searches places a greater burden upon the State
to prove the basis for a revocation than the present law requires. See Tenn. Code Ann. § 40-35-
311(e).

                                           CONCLUSION

        We conclude the record contains substantial evidence to support the trial court’s conclusion
that a violation occurred. Accordingly, we affirm the judgment of the trial court.




                                                        ____________________________________
                                                          JOHN EVERETT WILLIAMS, JUDGE




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