         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 5, 2003

               STATE OF TENNESSEE v. CHARLES LAWUARY

                  Direct Appeal from the Circuit Court for Madison County
                              No. 01-488    Roger Page, Judge



                   No. W2002-02739-CCA-R3-CD - Filed October 17, 2003


Defendant, Charles Lawuary, appeals from the trial court's order revoking Defendant's community
corrections sentence and requiring him to serve the sentence in incarceration. Defendant argues that
the trial court abused its discretion in revoking the community corrections sentence. After a review
of the record, the briefs of the parties, and the applicable law, we affirm the judgment of the trial
court.

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

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and
ROBERT W. WEDEMEYER , JJ., joined.

Michael D. Rasnake, Jackson, Tennessee, for the appellant, Charles Lawuary

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; James
G. Woodall, District Attorney General; James W. Thompson, Assistant District Attorney General,
for the appellee, the State of Tennessee.

                                            OPINION

         On January 30, 2002, Defendant pled guilty in the Madison County Circuit Court to three
misdemeanor offenses: (1) attempted leaving the scene of an accident with injuries; (2) driving
without a valid license; and (3) possession of marijuana. Defendant received concurrent sentences,
resulting in a total effective sentence of 11 months and 29 days in the county jail. The trial court
suspended Defendant’s sentences and ordered the sentences to be served in the community
corrections program. On May 15, 2002, a community corrections violation warrant was issued. The
following grounds for revocation were alleged in the warrant: (1) Defendant failed to report new
arrests in Gibson County on March 7, 2002; and (2) Defendant was convicted on March 13, 2002,
of “new offenses” of resisting arrest, evading arrest, and leaving the scene of an accident in Gibson
County.
        The State’s proof at the revocation hearing on September 12-13, 2002, was sparse. The State
did not present evidence that would normally be introduced in a hearing concerning the allegations
contained in a violation warrant similar to the one at issue in this case. Despite a one-day recess
during the hearing, the State was unable to submit certified copies of the judgments of conviction
in Gibson County. Also, there was no testimony or documentary evidence of the special conditions
and rules of Defendant’s community corrections sentence.

         Following the hearing, the trial court ruled that it was not revoking the community
corrections sentence based upon Defendant’s alleged failure to report his arrests of March 7, 2002.
The trial court did revoke the community corrections sentence based upon Defendant’s convictions
for offenses committed while on community corrections, and because of Defendant’s “conduct
unbecoming good citizenship.” A defendant is entitled to notice of the bases upon which the State
seeks to revoke probation. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed.
2d 656 (1973); State v. Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997); Tenn. Code
Ann. § 40-35-311 (1997). The requirement of notice applies in a community corrections revocation
proceedings just as it does in probation revocations. Bentley v. State, 938 S.W.2d 706, 714 (Tenn.
Crim. App. 1996). Because there is no evidence in the record that “conduct unbecoming good
citizenship” was a violation of any condition of his community corrections sentence, and because
this alleged ground was not charged in the violation warrant, we can readily dispense with that issue
and conclude that it is not a proper basis to revoke Defendant’s community corrections sentence.

        Therefore, we are left to resolve whether Defendant’s community corrections sentence was
properly revoked because of his convictions for offenses committed while on community corrections.
Defendant’s aunt, Rebecca Jones, testified that Defendant contacted her after his arrest in Gibson
County. Defendant was still in the Gibson County jail, and he told Ms. Jones his situation. He asked
her to contact his community corrections supervisor, Carla Rogers, and inform Ms. Rogers that he
had “picked up a charge.” Ms. Jones testified that she made three unsuccessful attempts to contact
Ms. Rogers by phone.

         Finally, on April 1, 2002, Ms. Jones went to Ms. Rogers’ office. Upon discovering that Ms.
Rogers was not present, Ms. Jones left a note to Ms. Rogers on a “client contact form.” This form
was admitted as an exhibit. Ms. Jones acknowledged that she wrote the information in the
“comments” section of the report, and testified that she wrote what the Defendant had told her. The
comments section states “[Defendant] is presently in Gibson County jail for 90 days. He was riding
with someone who had a [sic] accident. Charges are 30 days leaving the scene, 30 days resisting
arrest, and 30 days evading arrest.”

         Officer Bruce Dodd of the Humboldt police department testified concerning Defendant’s
arrest on March 7, 2002. Officer Dodd was not specifically asked, nor did he offer, testimony as to
the specific charges placed against Defendant on March 7, 2002. Moreover, the officer did not
testify that these charges were filed in Gibson County. We can take judicial notice, however, that
Humboldt is entirely within Gibson County. Tenn. R. Evid. 201(b). Officer Dodd stated that
Defendant and another male were stopped while walking on the Highway 45 bypass for investigation


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of leaving a wrecked car nearby. Dodd also testified that Defendant broke away from another officer
with Dodd when Defendant was placed into custody, and that Defendant and his companion both
ran away into a nearby swamp, where they were later apprehended. These facts support a strong
inference that Defendant was arrested in Gibson County on March 7, 2002 for the offenses of leaving
the scene of an accident, resisting arrest, and evading arrest. The testimony of Ms. Jones of what
Defendant told her regarding his situation also supports a strong inference that Defendant was
convicted in Gibson County on March 13, 2002, and was serving a 90-day sentence as a result of the
March 7, 2002 charges.

         Defendant complains on appeal that the trial court relied upon unreliable hearsay in revoking
the community corrections sentence. The testimony of Ms. Jones was not inadmissible hearsay
because it was an admission by Defendant. Tenn. R. Evid. 803(1.2). Defendant did not object to
the testimony of Ms. Rogers that Defendant was arrested in Gibson County on March 7, 2002. The
testimony of Officer Dodd was based entirely upon what Dodd personally observed at the time of
Defendant’s arrest on March 7, 2002, and was therefore not hearsay.

        Our supreme court has held that in deciding whether to revoke a community corrections
sentence, courts should apply the same principles utilized in probation revocations. State v. Harkins,
811 S.W.2d 79 (Tenn. 1991). A trial court may revoke a sentence of probation upon a finding by
a preponderance of the evidence that the person has violated a condition of probation. Tenn. Code
Ann. § 40-35-311(e) (Supp. 2002). The 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 and a community corrections sentence is subject to an abuse of discretion
standard of review, rather than a de novo standard. Harkins, 811 S.W.2d at 82. Discretion is abused
only if the record contains no substantial evidence to support the trial court’s conclusion 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, and did not act arbitrarily. Gregory, 946 S.W.2d at 832; State v. Leach, 914
S.W.2d 104, 106 (Tenn. Crim. App. 1995). If the trial court finds that the defendant has violated the
conditions of probation, the court may “commence the execution of the judgment as originally
entered . . . .” Tenn. Code Ann. § 40-35-311(e) (Supp. 2002).

       While the State did not offer the strongest evidence possible in support of the revocation of
Defendant’s community corrections sentence, the record reflects that the State introduced evidence,
although circumstantial, that Defendant was convicted for “new offenses” which were committed
while he was serving a community corrections sentence. Although the State did not submit any
documentation of the rules and conditions of Defendant’s supervised community corrections
sentence, implicit in any sentence involving release in the community is the requirement that a
defendant not commit new crimes. Defendant is not entitled to relief in this appeal.




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                                  CONCLUSION

For the reasons stated herein, the judgment of the trial court is affirmed.


                                               ___________________________________
                                               THOMAS T. WOODALL, JUDGE




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