        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs at Knoxville December 13, 2011

              STATE OF TENNESSEE v. TIMOTHY L. MORTON

             Direct Appeal from the Circuit Court for Williamson County
                    No. IICR024701      Timothy L. Easter, Judge


                No. M2011-00876-CCA-R3-CD - Filed March 30, 2012


Appellant, Timothy L. Morton, appeals the revocation of his probation, claiming that the trial
court abused its discretion by revoking his probation and ordering execution of the original
effective sentence of three years. Finding no error, we affirm the judgment of the trial court.

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

R OGER A. P AGE, J., delivered the opinion of the Court, in which J OSEPH M. T IPTON, P.J., and
J OHN E VERETT W ILLIAMS, J., joined.

Steven M. Garner (on appeal) and Ernest W. Williams (at revocation hearing), Franklin,
Tennessee, for the appellant, Timothy L. Morton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Kim
R. Helper, District Attorney General; Kelly A. Lawrence, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                             I. Facts and Procedural History

       On August 9, 2010, appellant pled guilty to driving under the influence, fourth offense
and driving after having been declared an habitual motor vehicle offender. Upon
recommendation of the State, he received a sentence of one year for driving under the
influence, fourth offense, and two years for the habitual motor vehicle offender violation, to
be served consecutively. The court suspended the entire sentence, and appellant’s probation
began on August 9, 2010.
       Appellant’s probation officer, Connie Martin, filed a probation violation report on
February 25, 2011, alleging that appellant had violated two separate conditions of his
probation. Ms. Martin alleged that the first violation involved committing new criminal
offenses, including resisting arrest, assault on an officer, and disorderly conduct. The second
basis for violation involved making threats to Nathan Buttrey, the Governor’s Assistant
Director for Constituent Affairs, Governor Haslam, and others.

        The trial court held a probation revocation hearing on March 22, 2011. Officer Jeff
Tarkington with the Gallatin Police Department testified that on December 22, 2010, he
responded to an emergency call. The male caller reported that he had been robbed and that
the suspects had left on foot. When Officer Tarkington and other officers responded to the
area, they were unable to locate the person who made the emergency call. Officer
Tarkington asked the dispatcher to call the person back and ask him to return to the scene,
but no one came back. At some point, the officer ascertained that the 9-1-1 call had
originated from appellant’s cellular telephone. Officer Tarkington first contacted appellant
via telephone. Appellant maintained that he did not make the emergency telephone call and
that another individual whose name was also Timothy had made the call. However, appellant
could not provide any further information regarding the identity of the alleged other caller.
Appellant advised the officer that he was presently at a gas station, but gave the officer his
address and said that he would meet him there shortly. Officer Tarkington then visited
appellant’s residence. Officer Tarkington did not have a warrant when he went to appellant’s
residence.

       Upon arrival at appellant’s home, Officer Tarkington asked for identification. The
officer began writing a citation for misuse of the 9-1-1 emergency system while he was
holding appellant’s identification card. At this point, appellant demanded that the officer
return his card. Because he was still using it to issue the citation, Officer Tarkington refused.
Appellant insisted that the card was his property, to which the officer responded that the card
was issued by the State of Tennessee and was state property. When Officer Tarkington
refused to return appellant’s identification card upon demand, appellant attempted to assault
him. Officer Tarkington restrained appellant on the front porch of his residence. The officer
then released appellant, but he continued to be combative, causing Officer Tarkington to use
his taser on appellant. The officer called for back-up and advised that he had “tased”
appellant. At that point, the officer took appellant into custody.

       After meeting with appellant at his residence, Officer Tarkington realized that he had
actually encountered appellant earlier in the day when Officer Tarkington was leaving the
area where the caller had placed the 9-1-1 call. Although another officer talked with
appellant at the place where the 9-1-1 call was made, Officer Tarkington recognized
appellant as being the same person who was there earlier.


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        The State also presented Nathan Buttrey as a witness at the probation revocation
hearing. He encountered appellant during his tenure at the Governor’s office. Mr. Buttrey’s
first contact with appellant was February 4, 2011. Appellant faxed a twenty to thirty-page
document to the Governor’s office. Appellant addressed the faxed document to
approximately eight or nine other offices, including media offices, courts, politicians, and the
Department of Justice. Appellant sent the document every day for approximately two weeks.
Some of the documents indicated that appellant wished for a civil war so that “we can ride
the people who wronged others.” Because he started his position when the Governor was
inaugurated in January, 2011, Mr. Buttrey did not know whether or how often appellant sent
the same fax to the previous administration. At some point, Mr. Buttrey called appellant and
asked him to stop sending the same faxed document, as the packet was quite large.
Appellant’s response indicated that his fax machine sent the document automatically but that
he would try to figure out how to make it stop resending the document.

        During this time, Mr. Buttrey spoke with appellant by telephone and attempted to
gather information about his previous criminal cases and the issues with which he wanted the
Governor’s assistance. He also forwarded the faxed packet to the Administrative Office of
the Courts. On or about February 22, 2011, after conducting research and speaking with the
Governor’s legal staff and his director, Mr. Buttrey advised appellant that the Governor’s
office had limited jurisdiction to assist him and that he should retain an attorney to pursue
his legal matter. Appellant responded angrily. He yelled, screamed, and threatened violence
against Mr. Buttrey, Caucasians, and the Governor. He specifically stated that “he wanted
to beat white people to death,” that “he wanted to get some blood,” and that “he wanted to
stab the Governor in the face with a pencil.” Mr. Buttrey treated appellant’s threats as being
legitimate in nature. Appellant had advised Mr. Buttrey that appellant was restricted from
contacting offices of various courts and governmental offices. Due to that fact, in
conjunction with appellant’s erratic behavior and self-reported violent history, Mr. Buttrey
felt threatened by his comments.

        Following this exchange, Mr. Buttrey spoke with the Governor’s executive security
detail. After an initial meeting with a member of the security detail, Mr. Buttrey gave all of
the information to Special Agent in Charge Mark Stanford with the Criminal Investigative
Division of the Tennessee Highway Patrol.

       On February 25, 2011, appellant called Mr. Buttrey again. Appellant thanked Mr.
Buttrey for treating him well and taking the time to help him. Appellant told Mr. Buttrey
how much he appreciated his help. Appellant made the telephone call in the morning and
was served with the probation violation arrest warrant that afternoon.




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       Gary Wix, a member of the Criminal Investigative Division of the Department of
Safety, also testified at appellant’s probation revocation hearing. Special Agent Mark
Stanford gave Agent Wix the information regarding the threats made by appellant. Appellant
had made threats against the current and former governors, multiple attorneys general, and
several others. Agent Wix met with appellant on February 25, 2011, at the parole office in
Gallatin, Tennessee. According to Agent Wix, appellant acknowledged having made the
comments regarding his desire to have a civil war but denied having made threats against the
Governor. Agent Wix testified that appellant was hard to question because it was difficult
to keep him on the subject. Appellant told Agent Wix that he had been involved in a car
wreck years earlier and had suffered a brain injury as a result.

        Appellant testified on his own behalf at the hearing. He testified first about Officer
Tarkington coming to his house to investigate the emergency call. Appellant stated that the
officer did not have a warrant. He also stated that while he voluntarily gave the officer his
identification, the officer would not return it when he asked. They argued about whether the
card belonged to appellant or the state. Appellant had been drinking and took a swing at the
officer.

       Appellant stated that as a result of the previous car wreck, he suffered many internal
injuries. He was presently suffering from an object imbedded in his abdominal area that was
causing hernias to develop. He testified at length about the multiple hernias and the
complications therefrom. Appellant had consulted with the Veteran’s Hospital and was
scheduled to undergo surgery in the near future, but he had to get his diabetes under control
before the doctors could operate. He could not affirmatively state that the condition
worsened as a result of the taser.

       Appellant testified that he began contacting the Governor’s office regarding a
perceived wrong that he had experienced. Years earlier, appellant was involved in a high-
speed chase that led to charges against him in both counties in which the chase occurred,
Davidson and Sumner. He had to post bond in both counties in order to be released from jail.
Appellant has maintained that this practice was a violation of his constitutional right against
double jeopardy and that he was entitled to a refund of the bond money in one of the
counties. His campaign with the Governor’s office and other offices involved trying to
resolve the matter to his satisfaction. The assistant district attorney elicited further
information regarding appellant’s history of inappropriate communications with government
offices. The appellant testified to a litany of different letters appellant had written, threats
to file complaints, complaints he had filed, and offices that had asked him to cease
communications. All of the communications had been with regard to violations of his
various constitutional rights. Appellant testified about his lengthy criminal history and
unsuccessful attempts to comply with previous orders of probation.


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       Following the hearing, the trial court found insufficient evidence to support either
appellant’s physical or mental disability. The court concluded that the State presented proof
by a preponderance of the evidence that appellant had committed the offenses of assaulting
an officer, resisting arrest, and disorderly conduct. The court also determined that appellant
had engaged in threatening or intimidating behavior. The trial court then revoked appellant’s
probation. Defense counsel filed a timely notice of appeal on April 21, 2011.

                                           II. Analysis

       In this appeal, appellant contends that the trial court abused its discretion by revoking
his probation and ordering execution of the sentence. After a thorough review of the record,
we affirm the trial court’s order of probation revocation and incarceration.

        The revocation of a suspended sentence rests in the sound discretion of the trial judge.
State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). In determining whether to revoke probation, it
is not necessary that the trial judge find that a violation of the terms of the probation has
occurred beyond a reasonable doubt. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). If
the trial court finds by a preponderance of the evidence that the defendant has violated the
conditions of probation, the court is granted the authority to revoke the probation and
suspension of the sentence. Tenn. Code Ann. § 40–35–311(e)(1) (2010). The appellate
standard of review of a probation revocation is abuse of discretion. See State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001); see also State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim.
App. 2007). Generally, “[a] trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment
of the proof, or applies reasoning that causes an injustice to the complaining party.” State v.
Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

        Appellant first argues that he had a property interest in his driver’s license/state-issued
identification card; that the officer illegally retained control over the card; that appellant was
legally entitled to recover the card; and that the trial court failed to consider his property
interest and legitimate attempt to retrieve the card as justification for his actions.

       A driver’s license is a state-issued certificate authorizing a person to operate a motor
vehicle. Black’s Law Dictionary (9th ed. 2009). The procedure, fees, and requirements for
obtaining a driver’s license are set forth by the state legislature. See Tenn. Code Ann. § 55-
50-301 (2008) et seq. Because it is the entity that grants the license, the state, through the
Department of Public Safety, has the authority to revoke the license to drive. See Tenn.
Code Ann. § 55-50-501 (2008) et seq. The legislature also granted the Department of Public
Safety authority to issue a state-issued photograph identification card. Tenn. Code Ann. §


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55-50-336 (2008). The photo identification card contains substantially the same information
as a driver’s license and clearly indicates thereon that it is “for identification purposes
only–not valid for vehicular use.” Tenn. Code Ann. § 55-50-336(b) (2008). The Department
of Public Safety issues photo identification licenses in the same manner as drivers’ licenses.
Tenn. Code Ann. § 55-50-336(c) (2008). Further, a photo identification license issued by the
department “shall indicate if the license holder has previously had a license revoked or
suspended due to a conviction for violation of § 55-10-401,” driving while under the
influence. Tenn. Code Ann. § 55-50-336(d) (2008). Thus, if the state can divest an
individual of his license to operate a motor vehicle, the license cannot be the property of the
licensee. We reject the first premise of appellant’s argument, concluding that he did not hold
a valid property interest in his state-issued photo identification card.

       Even if appellant was correct in his mistaken belief that he enjoyed a property interest
in his identification card, he was not entitled to use force against Officer Tarkington to
retrieve the card. The relevant part of Tennessee Code Annotated provides:

       (b)    A person who has been unlawfully dispossessed of real or personal
              property is justified in threatening or using force against the other,
              when and to the degree it is reasonably believed the force is
              immediately necessary to . . . recover the property, if the person
              threatens or uses force immediately . . . [and]:

              (1)    The person reasonably believes the other had no claim of right
                     when the other dispossessed the person; and

              (2)    The other accomplished the dispossession by threatening or
                     using force against the person.

 Tenn. Code Ann. § 39-11-614(b)(1) & (2) (2008) (emphasis added). The facts developed
at the hearing clearly negate the appellant’s right to use force to reclaim the identification
card. Appellant was not “unlawfully” dispossessed of his identification card. The officer
asked for identification, and the appellant complied with the request. It is counterintuitive
that one might believe that he may use force against a police officer in general, but certainly
not to reclaim an identification card from his temporary possession. Finally, the statute
requires that both subsections (1) and (2) be met to justify use of force to protect one’s
property. The requirement of subsection (2) is clearly not met, as the officer did not utilize
threats or force to obtain appellant’s identification card. We conclude that even if appellant
mistakenly believed that he had a property interest to protect, he was not justified in using
force to repossess the identification card.



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        Our conclusions above are dispositive with regard to appellant’s invitation to apply
the plain error doctrine to this case. Appellant asks this court to review the trial court’s
failure to consider appellant’s right to use force to retrieve his property. Our supreme court
formally adopted the Adkisson test for reviewing claims of plain error:

       The Court of Criminal Appeals has developed five factors to consider when
       deciding whether an error constitutes “plain error” in the absence of an
       objection at trial: “(a) the record must clearly establish what occurred in the
       trial court; (b) a clear and unequivocal rule of law must have been breached;
       (c) a substantial right of the accused must have been adversely affected; (d) the
       accused did not waive the issue for tactical reasons; and (e) consideration of
       the error is ‘necessary to do substantial justice.’”

State v. Smith, 24 S.W.3d 274, 282 (Tenn. 2000) (quoting State v. Adkisson, 899 S.W.2d 626,
641-42 (Tenn. Crim. App. 1994)). All five factors must be established by the record before
a court will find plain error. Id. at 282. Complete consideration of all the factors is not
necessary when clearly at least one of the factors cannot be established by the record. Id.
In this matter, the record clearly indicates that subpart (b) of the Adkisson test is absent. The
trial court did not breach a “clear and unequivocal rule of law” by failing to consider, on the
record, appellant’s mistaken belief that he held a property interest in the identification card.
Thus, this court need not conduct an analysis of the remaining prerequisites of “plain error.”
See id.

        In his brief, appellant alludes to a sufficiency of the evidence issue with regard to the
offenses for which he was arrested. This court recognizes that new arrests and pending
charges may lead to proper grounds upon which a trial court can order revocation of a
defendant’s probation. See Harkins, 811 S.W.2d at 83 n. 3. In doing so, however, a trial
court may not rely on the mere fact of an arrest to revoke a defendant’s probation. A
revocation for garnering new arrests requires the State to “produce evidence in the usual form
of testimony” in order to establish the commission of the offense while defendant was on
probation. State v. Walter Lee Ellison, Jr., No. 01C01-9708-CR-00361, 1998 WL 272955,
at *2 (Tenn. Crim. App. May 29, 1998). It is not necessary that the trial court find proof of
the offenses for which appellant was arrested beyond a reasonable doubt. Proof by a
preponderance of the evidence that he committed new offenses is sufficient.

       The trial court heard testimony from Officer Tarkington regarding appellant’s
violation of the first condition of probation, that appellant would “obey the laws of the
United States or any State in which I may be, as well as any municipal ordinances.” The
officer testified about the facts giving rise to appellant’s three new arrests. Unlike cases in
which the trial court based a probation revocation upon the fact that the probationer had new


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arrests, without hearing additional proof concerning the bases for the arrests, the evidence
considered by the trial court in this matter satisfied the state’s burden of proof of “by a
preponderance of the evidence.” See generally Walter Lee Ellison, supra. The trial court
heard ample evidence upon which to order revocation of appellant’s probation based on new
offenses. The trial court did not abuse its discretion.

       Appellant next contends that the trial court erred in finding that appellant violated the
condition of his probation that prohibited him from engaging in assaultive, abusive,
threatening or intimidating behavior because appellant did not knowingly annoy or alarm Mr.
Buttrey.

       This court must first take note that appellant was not arrested for his activities with
regard to the violation of probation condition fourteen, which reads: “I will not engage in
any assaultive, abusive, threatening or intimidating behavior.” The trial court revoked
appellant’s probation for violation of this condition on the basis of testimony from Nathan
Buttrey of the Governor’s Office for Constituent Affairs, not on the basis of an arrest warrant
or pending charges stemming from appellant’s actions. Therefore, the trial court did not have
elements of a criminal offense to consider in association with this violation. Nonetheless,
appellant extrapolates from the requirements of condition fourteen that he was “charged”
with harassment. See Tenn. Code Ann. § 39-17-308 (2008). Appellant further deduces that
in order for the trial court to revoke his probation, he must have intended to threaten and
knowingly annoy or alarm Mr. Buttrey.

        Appellant’s contention stems from unsound reasoning. Appellant was not charged
with a criminal offense pursuant to condition fourteen of his probation terms. Violation of
that condition is met by proof that the probationer engaged in assaultive, abusive,
threatening, or intimidating behavior. While on the telephone with Mr. Buttrey, appellant
stated that he wanted to kill white people, get some blood, and stab the Governor in the face
with a pencil. Mr. Buttrey testified that as a result of appellant’s tirade, he felt threatened.
The actions Mr. Buttrey took in response to appellant’s threat support his belief. Mr. Buttrey
took the threat seriously enough that he referred the matter to the Governor’s security detail
for further investigation. The State presented proof that appellant violated condition
fourteen. The trial court properly found that appellant violated that condition.




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       In this case, the record supports the trial court’s order of probation revocation. We
conclude the trial court did not abuse its discretion in revoking appellant’s probation and
requiring him to serve his effective sentence.

       Accordingly, the judgment of the trial court is affirmed.




                                                  _________________________________
                                                  ROGER A. PAGE, JUDGE




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