            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                       July 27, 2011 Session

             STATE OF TENNESSEE v. JONATHAN SCOTT FLYNN

                 Direct Appeal from the Criminal Court for Knox County
                   No. 91245, 92306 Richard R. Baumgartner, Judge




                 No. E2011-00488-CCA-R3-CD - Filed September 23, 2011


On August 6, 2009, the defendant pleaded guilty in case number 92306 to theft over $1,000,
a Class D felony, in exchange for a sentence of two years in the Tennessee Department of
Correction as a Range I, standard offender. The defendant was released on December 20,
2009, and placed on supervised probation. On March 12, 2010, the defendant pleaded guilty
in case number 91245 to theft over $10,000, a Class C felony, in exchange for a sentence of
six years in the Tennessee Department of Correction as a Range II, multiple offender. The
trial court suspended the defendant’s sentence in 91245 and placed the defendant on
probation. On November 8, 2010, the trial court revoked the defendant’s probation and
ordered him to serve his sentences in confinement. On appeal, the defendant argues that the
court abused its discretion in revoking the defendant’s probation, alleging that the record
does not demonstrate that the defendant was in violation of his probation. Following our
review, we affirm the judgment of the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER, J., joined and J.C. M CL IN, J., (not participating).1

Wesley Daniel Stone, Knoxville, Tennessee, for the Defendant-Appellant, Jonathan Scott
Flynn.




        1
          This case was originally assigned to our colleague and friend, Judge J.C. McLin. After Judge
McLin’s untimely death on September 3, 2011, the case was re-assigned. Prior to his death, Judge McLin
and his staff had done extensive work on this case. We have utilized much of that work, incorporated it into
this opinion, and take this opportunity to acknowledge the faithful service of Judge McLin to this Court.
Robert E. Cooper, Jr., Attorney General and Reporter; Cameron L. Hyder, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Kenneth F. Irvine, Jr., Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

                                         Background

        On March 31, 2009, a Knox County grand jury indicted the defendant in case number
91245 on seven counts: theft over $10,000, a Class C felony; evading arrest in a motor
vehicle, a Class E felony; violation of the one-way traffic law, a Class C misdemeanor; three
Class B misdemeanor violations of the driver’s license law; and one Class C misdemeanor
violation of the driver’s license law. On March 12, 2010, the defendant pleaded guilty to
theft of property over $10,000 in exchange for a recommended sentence of six years in the
Tennessee Department of Correction as a Range II, multiple offender, and the dismissal of
the remaining charges. The trial court accepted his plea and sentenced him to six years as
a Range II, multiple offender, suspending all but one day of the sentence.

       On August 6, 2009, the district attorney general charged the defendant by criminal
information on one count of theft over $1,000, a Class D felony. That same day, the
defendant pleaded guilty to theft in exchange for a sentence of two years as a Range I,
standard offender in the Tennessee Department of Correction. The defendant was
incarcerated until December 20, 2009, when the Board of Probation and Parole placed him
on supervised probation until May 15, 2011.

        On June 10, 2010, a probation officer filed an affidavit alleging that the defendant
violated probation in the following ways: (1) the defendant was arrested in Knox County on
May 28, 2010, for possession of legend drug without prescription, possession of drug
paraphernalia, possession of burglary tools, and public intoxication; (2) the defendant did not
report the arrest to his probation officer as instructed; (3) the defendant did not provide proof
of employment; (4) the defendant changed his residence without permission of his probation
officer; (5) by changing his address, the defendant did not allow the probation officer to visit
his home; (6) the defendant did not report to probation as instructed and last reported on
March 10, 2010; (7) the defendant used intoxicants to excess as shown by his arrest for
public intoxication; (8) the defendant failed drug screens for cocaine and opiates on March
10, 2010; (9) the defendant failed to show proof of payment on probation fees, court costs,
fines, and restitution; and (10) the defendant failed to show proof of community service
work.




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        Based on the warrant issued by the court in light of the probation violation report, the
authorities took the defendant into custody. The trial court referred the defendant to the
Knox County Detention Facility’s intensive treatment program. On August 10, 2010, the
court released the defendant on his own recognizance to allow him to enter New Hope Mercy
House’s treatment program. The court entered an order on August 18, 2010, stating that “the
defendant shall attend and complete the treatment program at New Hope Mercy House.”

        On October 14, 2010, the probation officer amended the violation report to include
additional violations. The report alleged that the defendant engaged in assaultive, abusive,
threatening, and intimidating behavior in a manner that posed a threat to others and that he
failed to complete a court ordered treatment program because the New Hope Mercy House
evicted him. The report stated that the New Hope Mercy House evicted him because he
admitted to using morphine, refused to submit to a urine test, and initiated a physical
altercation with another student.

        The court held a probation revocation hearing on November 5, 2010. Probation
Officer Janice Whitt listed the defendant’s violations from the affidavit entered June 10,
2010, and its amendment. Officer Whitt additionally testified that the defendant waited four
days before contacting her about his eviction from New Hope Mercy House. When he
called, he told her that New Hope Mercy House would let him back into their program and
that he would contact her when he got to his residence to give her the address. She said that
he did not contact her again. Officer Whitt testified that the defendant had a problem with
“black and white rules.”

       The defendant testified that he wished to return to rehabilitation. He said that the last
time that he went to prison, he was more of a drug addict after he left than before he went
into prison. He testified that, while he did not report to his probation officer while he was
in rehabilitation, someone at the New Hope Mercy House sent a monthly letter to his
probation officer. The defendant further testified that he could not make any income while
in rehabilitation, and therefore, he could not pay any costs. He said that he would submit to
drug tests at least twice a month because testing that often would provide structure for him
and act as a deterrent.

        On cross-examination, the defendant stated that he had four felony convictions. He
testified that he had been on probation “numerous times” and agreed that he “failed every
time,” stating that he “was too busy doing drugs.” He agreed that he started getting into
trouble in 1992 and that he had never paid his costs. The defendant admitted that he used
drugs twice while on probation and that he had a verbal fight with someone at New Hope
Mercy House.



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        Ben Maples, Jr., the director of the New Hope Mercy House in Sevierville, Tennessee,
testified that the defendant entered the program on August 11, 2010, and did well until
October. He said that he was away from the facility when he received a message from the
intake coordinator at New Hope Mercy House about the defendant. As a result of that
message, he had the defendant evicted. Mr. Maples testified that the intake coordinator
received incorrect information about part of the defendant’s situation, but he also testified
that the defendant would have been suspended because he admitted to using drugs. He said
that the proper response should have been to suspend the defendant for two weeks, after
which time he would have returned to the program.

       The trial court revoked the defendant’s probation, stating:

               He’s clearly in violation of his probation on several grounds, continued
       use of controlled substances, not reporting to his probation officer; you know,
       all the other technical things that I’m not hanging my hat on, but you know, he
       never paid a penny. He lives where he wants to when he wants to, never
       worked a day in his life that I can tell.

                                           Analysis

        The defendant contends that the record does not demonstrate that the defendant
violated his probation. Specifically, he argues that the probation officer’s testimony did not
constitute substantive evidence because she was merely reciting the information contained
in the probation revocation warrant. The defendant also argues that there was no evidence
that he failed to pay costs, that he was required to do community service work, that he failed
a drug test, that he failed to prove employment, and that his probation officer tried to visit
his home unsuccessfully. He argues that he was incarcerated after his new arrest and could
not report it due to incarceration. He contends that revocation of his probation cannot rest
on new arrests without proof of new charges or convictions nor can it rest on failure to pay
restitution because the trial court did not inquire into the reasons behind his failure to pay
costs, fines, and restitution. Finally, he argues that his behavior at New Hope Mercy House
should not be the basis for revoking his probation because the director testified that he should
have received a two-week suspension rather than eviction.

        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). A trial court is not required to find that a violation of probation occurred
beyond a reasonable doubt. Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980).
Our standard of review on appeal is whether the trial court abused its discretion in finding
that a violation of probation occurred. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim.

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App. 1991); see also State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim. App. 1997).
The appellate court is obligated to examine the record and determine whether the trial court
was presented with sufficient evidence to allow him to make an intelligent decision.
Mitchell, 810 S.W.2d at 735. In order to conclude that the trial court abused its discretion,
there must be no substantial evidence to support the determination of the trial court. State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). 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 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)).

       In this case, the trial court had more than sufficient evidence to make an intelligent
decision about whether to revoke the defendant’s probation based solely on the defendant’s
testimony, disregarding all other testimony presented at the hearing. The defendant admitted
that he had failed a drug test and that he had used drugs twice while in court-ordered
rehabilitation. Furthermore, the defendant admitted that he had violated probation every time
he had been placed on probation previously. Even assuming arguendo that the defendant is
correct about the paucity of evidence, his own testimony was sufficient to support the trial
court’s decision to revoke his probation. Therefore, we conclude that the trial court did not
abuse its discretion. The defendant is without relief in this matter.

                                         Conclusion

       Based on the foregoing reasons, we affirm the judgment of the trial court.


                                                    ___________________________________
                                                    CAMILLE R. MCMULLEN, JUDGE




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