         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                           AT NASHVILLE         FILED
                        AUGUST 1999 SESSION
                                                  October 5, 1999

                                                Cecil Crowson, Jr.
                                               Appellate Court Clerk
STATE OF TENNESSEE,              )
                                 )    NO. 01C01-9901-CC-00007
      Appellee,                  )
                                 )    MARION COUNTY
VS.                              )
                                 )    HON. THOMAS W. GRAHAM,
TOUSSIANT D. TURNER,             )    JUDGE
                                 )
      Appellant.                 )    (Probation Revocation)



FOR THE APPELLANT:                    FOR THE APPELLEE:

L. THOMAS AUSTIN                      PAUL G. SUMMERS
116 E. Cherry                         Attorney General and Reporter
P.O. Box 666
Dunlap, TN 37327-0666                 KIM R. HELPER
                                      Assistant Attorney General
                                      Cordell Hull Building, 2nd Floor
                                      425 Fifth Avenue North
                                      Nashville, TN 37243-0493

                                      JAMES MICHAEL TAYLOR
                                      District Attorney General

                                      STEVEN H. STRAIN
                                      Assistant District Attorney General
                                      265 Third Avenue, Suite 300
                                      Dayton, TN 37321




OPINION FILED:



AFFIRMED



JOE G. RILEY, JUDGE
                                     OPINION


       The appellant, Toussiant D. Turner, appeals the Marion County Circuit

Court’s order revoking his probation and requiring him to serve the balance of an

eight-year sentence in the Department of Correction. On appeal, he claims that the

trial court abused its discretion in revoking his probation. We find no merit to this

assertion and AFFIRM the judgment of the trial court.




                                      FACTS



       In March 1997, appellant pled guilty and was convicted of the sale and

delivery of cocaine over 0.5 grams, a Class B felony. The trial court gave appellant

an eight-year sentence in the Department of Correction.



       After completion of the “boot camp” program, appellant was released onto

probation. Appellant’s supervision was transferred to Atlanta, Georgia, immediately

upon his release from the penitentiary. In October 1998, appellant was arrested by

the Atlanta police for felony possession of cocaine with intent to distribute,

possession of marijuana, and a weapons charge. The probation officer filed a

probation violation warrant.



       Atlanta narcotics investigator, Robert Daniels, testified at the probation

revocation hearing. Working undercover on October 12, 1998, Daniels observed

a number of apparent drug transactions in an Atlanta housing development. The

officer observed a person on the street collect money form various people, take the

money to an apartment, get something in return, and then hand it over to the person

who gave him the money. After one of these transactions, a woman walked directly

past him with what looked like crack cocaine in her hand. Daniels alerted uniformed

officers in the area, but they arrived too late to make an arrest.




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       Daniels continued his surveillance of the apartment. Between ten to fifteen

minutes later, Daniels saw appellant leave the apartment with a black tote bag,

place the bag in a car parked across the street, and return to the apartment.



       Daniels then called uniformed officers back to the scene and instructed them

to make inquiries at the apartment. Those inquiries resulted in a consent to search

both the car and the apartment by Monique Waters, who was the owner of the car

and the lessor of the apartment. When Waters gave her consent to search the car,

she stated, “let me get the keys from Toussiant.” Appellant told W aters, “no, baby,

no,” when she “came out with the keys.”



       The search of the car revealed one black tote bag which contained sixty-five

“hits” of what appeared to be crack cocaine, a fully-loaded “Tech 9" semi-automatic

weapon, and approximately $1,000 in cash. The search of the apartment revealed

a small amount of marijuana and various cocaine manufacturing paraphernalia.

Georgia law enforcement charged appellant with felony possession of cocaine with

intent to distribute, possession of marijuana, and possession of a firearm during the

commission of a crime. At the time of the probation revocation hearing, Georgia

police did not yet have an analysis of the substance retrieved from the tote bag.



       The trial court made the following finding:

       “[T]his seems to be fairly straight forward as far as what appears by
       a preponderance of the proof to have occurred down there. . . . It
       appears [appellant] was involved in a location which was selling drugs
       that he in fact possessed . . . drugs, that he was charged ultimately
       with that crime. That’s what the preponderance of the proof is, I don’t
       think anybody could hold otherwise, so he’s violated his probation.”



                            STANDARD OF REVIEW



       A trial court may revoke probation and order the imposition of the original

sentence upon a finding by a preponderance of the evidence that the person has

violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, 311. The

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decision to revoke probation rests within the sound discretion of the trial court.

State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Revocation of

probation is subject to an abuse of discretion standard of review, rather than a de

novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is

abused only if the record contains no substantial evidence to support the conclusion

of the trial court that a violation of probation or community correction sentence has

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, and the

evidence need only show that the trial judge exercised a conscientious and

intelligent judgment, rather than acting arbitrarily. Gregory, 946 S.W.2d at 832;

State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).




                            PROBATION REVOCATION



       Appellant claims that the trial court abused its discretion by revoking his

probation. Appellant argues that at the time of the revocation hearing, he had not

been tried or convicted on any of the Georgia charges. Essentially, appellant

argues that the mere existence of new criminal charges against him is an

insufficient ground upon which to base a probation revocation.



       “A mere accusation, standing alone, is not sufficient to justify revocation. . .

[t]he state is required to present at least some fact which would permit the trial court

to make a conscientious and intelligent judgment as to the violation.” State v. Mark

Crites, C.C.A. No. 01C01-9711-CR-00512, Sumner County (Tenn. Crim. App. filed

February 9, 1999, at Nashville)(citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn.

Crim. App. 1991)).      In this instance, the state presented the testimony of

Investigator Daniels who personally observed the appellant’s violative actions.



       We note that although Investigator Daniels did not have a lab report



                                           4
confirming the identity of the substance discovered in the black tote bag, his

testimony that the substance appeared to be crack cocaine was properly admitted.

An officer may testify as to the identity of an illegal controlled substance based upon

his experience. See, e.g., State v. Anderson, 644 S.W.2d 423, 424 (Tenn. Crim.

App. 1982); State v. Peter Gunn, C.C.A. No. 02C01-9511-CR-000352, Shelby

County (Tenn. Crim. App. filed September 30, 1996, at Jackson).1



       The proof revealed the appellant was in an apartment where apparent drug

transactions were taking place. He carried a bag out of the apartment containing

sixty-five hits of what appeared to be crack cocaine, a Tech 9 weapon, and $1,000

cash and placed it in a car. Cocaine manufacturing paraphernalia and marijuana

were found in the apartment. This evidence was sufficient to permit the trial court

to make a conscientious and intelligent judgment that appellant violated the terms

and conditions of his probation.




                                    CONCLUSION



       Based upon the foregoing, we conclude the trial court did not abuse its

discretion by revoking appellant’s probation and ordering him to serve the balance

of his eight-year sentence in the Department of Correction. Thus, we AFFIRM the

judgment of the trial court.




       1
         We also note that the presence of the semi-automatic weapon and a large amount
of cash in the same bag as the substance is indicative of drugs and may be considered in
evaluating the identity of the substance.

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                                   ____________________________
                                    JOE G. RILEY, JUDGE




CONCUR:




____________________________
DAVID G. HAYES, JUDGE




____________________________
L.T. LAFFERTY, SENIOR JUDGE




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