        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 26, 2014

                  STATE OF TENNESSEE v. JAMES MELTON

                Appeal from the Circuit Court for Anderson County
         No. A9CR0121, A9CR0938, B0C00017        William E. Lantrip, Judge


                No. E2013-01629-CCA-R3-CD-FILED-APRIL 16, 2014


The Defendant-Appellant, James Melton, appeals the trial court’s revocation of his probation
and reinstatement of his original six-year sentence in the Department of Correction. On
appeal, Melton argues that the trial court based its decision on improper evidence and refused
to admit proper evidence. The State responds that there is substantial evidence in the record
to support the trial court’s order of revocation. Upon our review, we affirm the judgment of
the trial court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J EFFREY S. B IVINS
and R OGER A. P AGE, JJ., joined.

J. Thomas Marshall, Jr., District Public Defender; and Nancy Meyer, Assistant District
Public Defender, Clinton, Tennessee, for the Defendant-Appellant, James Melton.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Senior Counsel;
David S. Clark, District Attorney General; and Sandra Donaghy, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                         OPINION

       On November 18, 2010, the Defendant-Appellant, James Melton, entered guilty pleas
in the Anderson County Circuit Court to one count of prescription fraud and one count of
possession of drug paraphernalia in case number A9CR0121; three counts of forgery in case
number A9CR0938; and one count of aggravated burglary in case number B0C00017. He
received an effective six-year sentence, which was suspended to supervised probation.
        On October 29, 2012, a violation of probation warrant was issued alleging that Melton
failed to: report to his probation officer on December 13, 2010; contact or report since
November 30, 2010; enroll in the HOPE treatment program; pay court costs and fines; pay
restitution to the victim Bank of America, Lake City Branch; complete the Anderson County
Drug Court Program; and provide a biological specimen for DNA analysis.

        The warrant also alleged that Melton was arrested in Loudon County on June 13,
2012, and in Knox County on October 3, 2012, for driving with a suspended license; that he
failed to appear in Loudon County on July 25, 2012; that he did not inform the arresting
officer in Knox County of his status as a probationer at the time of his arrest; and that he did
not report his two arrests to his probation officer.

        On June 17, 2013, an amended warrant was issued which incorporated the prior
warrant and further alleged the following violations: that Melton had not reported to his
probation officer since April 30, 2013; that he did not attend AA/NA meetings twice a week
or turn in attendance logs as required; that he tested positive for Suboxone on April 30, 2012;
that he owed $502 in monthly supervision and criminal injuries fees; and that he had failed
to pay restitution and still owed $455.

         At the June 28, 2013 revocation hearing, Probation and Parole Officer Lynnea
Pinkham testified that she began to supervise Melton when he was placed on probation in
November 2010. She said that he failed to report to her on December 13, 2010, and that he
had no contact with her since November 30, 2010. She stated that Melton also failed to enter
the HOPE Halfway House as required under his plea agreement. Officer Pinkham further
testified that Melton was admitted to drug court but that “[h]e stopped attending about a
month later” and failed to complete the program. She said that, on March 26, 2013, Melton
made one payment of $30 in restitution to the Bank of America in Lake City, Tennessee, but
he still owed $455 in unpaid restitution. She said he had not paid any courts costs or fines at
the time the amended warrant was issued in June 2013. She stated that Melton eventually
complied in providing a DNA sample in 2013.

        Officer Pinkham agreed that she filed an amended probation violation affidavit on
October 29, 2012, after learning that Melton was arrested in Loudon County on June 13,
2012, and in Knox County on October 3, 2012, for driving with a suspended license.1 She
said that Melton did not inform her of these arrests as required under the terms and
conditions of his probation. Officer Pinkham filed the second amended affidavit on June 27,
2013, because Melton had not reported to her since April 30, 2013. She stated that Melton

       1
         Defense counsel objected on the grounds that the charges were unresolved, which the trial court
overruled.

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did not comply with the requirement of attending AA or NA meetings twice a week and that
he did not provide proof of any attendance. She said Melton tested positive for Suboxone
on April 30, 2013. She further testified that he had failed to pay his monthly supervision and
criminal injury fees and owed $502. She said Melton had only participated in probation “a
brief few months here and there.”

         On cross-examination, Officer Pinkham testified that Melton had participated in
probation “[f]or no more than five or six months.” She said that she adjusted the amount of
supervision fees that Melton owed to the State and that she knew he was working and had
an income. She stated that Melton had provided her with only one paystub. Officer Pinkham
said Melton informed her that he had attended a Suboxone clinic and that the medication was
prescribed by Richard E. Stohlein.2 She said she was aware of one prescription for Suboxone
film that had been filled on August 10, 2012. Officer Pinkham stated that Melton was taken
off the waiting list at the HOPE Halfway House when he began the drug court program. She
said she contacted HOPE House and learned that Melton had not followed up with a phone
call as instructed. On redirect examination, Officer Pinkham said Melton was ordered to pay
a fine of $150 after he pled guilty to possession of drug paraphernalia.

       Chadwick Shane May, a patrol officer with the Knox County Sheriff’s Office, testified
that he initiated a traffic stop with Melton on October 3, 2012. He said that Melton only
provided an identification card. After a records check, Officer May confirmed that his
driver’s license was suspended. He also learned that Melton had an outstanding warrant in
Loudon County.3 Officer May then took Melton into custody.

        Peter McGinley testified, over the objection of the defense, that he was a patrol
supervisor with the Loudon County Sheriff’s Office and that he came into contact with
Melton on June 15, 2012. Officer McGinley said he had noticed a vehicle in a campground
parking lot with expired registration. He said Melton did not provide a driver’s license or
identification. After a records check, Officer McGinley found that Melton’s license had been
suspended. He cited Melton for driving with a suspended license. He did not cite Melton
for a violation of registration. On cross-examination, Officer McGinley stated that Melton
had an upcoming court date in Loudon County for the charge of driving with a suspended
license. He agreed that there was a presumption of innocence for the charge.

        2
          Defense counsel offered into evidence a document stating that Melton had completed his Suboxone
treatment in March 2012. The State objected on the grounds that the document was unreliable hearsay. The
trial court sustained the State’s objection.
        3
           Defense counsel made a continuing objection to the testimony of the arresting officer, asserting that
arrests were inadmissible without a proof of conviction. The State responded that the arresting officer could
testify as to his personal knowledge of the event. The trial court overruled the objection.

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        James Melton testified that he went to several NA and AA meetings and that he did
turn in an attendance log. He said he had attended meetings at the Hope Center in Oak Ridge
and at Recovery Strategies in Knoxville. He stated that he had lost the log and so he
provided his probation officer with an attendance log written on notebook paper. He said he
had very little income during this time and that he worked briefly at Arby’s earning $150 a
week. At the time, Melton lived with his parents and sister. He said he had a prescription
for Suboxone and that he attended a Suboxone clinic after he left drug court. Melton testified
that he left drug court “because [he] panicked when [he] failed a drug test.” He said he tested
positive because of the prescribed medicine. He stated that he had called HOPE Halfway
House several times and was never informed that there was a bed available. Melton agreed
that there was a time he was reporting to his probation officer and that he was making an
effort to pay restitution.

        Melton further testified that his vehicle registration was not expired when Officer
McGinley stopped him. He said he had been stopped because the license plate had a tinted
cover on it. Melton said he understood the strict requirements of the community corrections
program and that he would participate if sentenced to community corrections. He testified
that he panicked when he failed his test for drug court and that “jail scared [him] to death.”
He considered community corrections his last chance “to stay clean and actually get some
help and do the right thing.” Melton stated that he had a job with a private contractor if
released into the community and that he could live with either his mother or sister.

       At the conclusion of the revocation hearing, the trial court revoked Melton’s probation
and ordered him to serve his original sentence in confinement, with credit for time served.
In support of its decision, the trial court stated:

       The Court finds by a preponderance of the evidence that there has been
       repeated and continued non compliance [sic] with the conditions of probation.
       I find that he’s failed to report except for short periods of time. He has failed
       to complete the drug court or to do any of the requirements set forth in the
       conditions of probation. In addition, that there have been subsequent arrests
       for which no report was made to the State. Finding by a preponderance of the
       evidence, the Court finds that the probation is revoked and the defendant is
       remanded to the State for service of the sentence imposed in the criminal court
       proceedings.

       It is from this order that Melton now timely appeals.

                                        ANALYSIS



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        On appeal, Melton argues that the trial court erred in admitting evidence of new
charges without convictions. He also asserts that the court erred in refusing to admit into
evidence a letter from Melton’s physician confirming that he had completed drug treatment.
He contends that “[b]ecause the lower court based its decision on improperly admitted
evidence and compounded this error by refusing to consider reliable and exculpatory hearsay,
the decision to revoke [Melton’s] probation should be reversed and an order should enter
placing him on Community Corrections for the balance of his sentence.” The State responds
that there is substantial evidence in the record to support the trial court’s order of revocation.
We agree with the State.

        After determining that a defendant “has violated the conditions of probation and
suspension by a preponderance of the evidence, the trial judge shall have the right . . . to
revoke the probation and suspension of sentence, and . . . [c]ause the defendant to commence
the execution of the judgment as originally entered, or otherwise, in accordance with § 40-
35-310[.]” T.C.A. § 40-35-311(e). Probation revocation rests within the sound discretion
of the trial court, and this court will not disturb the trial court’s ruling absent an abuse of that
discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State v. Harkins, 811
S.W.2d 79, 82 (Tenn. 1991)). In order to establish an abuse of discretion, the defendant must
show “that the record contains no substantial evidence to support the conclusion of the trial
judge that a violation of the conditions of probation has occurred.” Harkins, 811 S.W.2d at
82 (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395,
398 (Tenn. Crim. App. 1980)). “The proof of a probation violation need not be established
beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a
conscientious and intelligent judgment.” Harkins, 811 S.W.2d at 82 (citing State v. Milton,
673 S.W.2d 555, 557 (Tenn. Crim. App. 1984)). Once the trial court has made the finding
that a violation of probation has occurred, it has the discretion to order the defendant to: (1)
serve the original sentence in incarceration; (2) serve the probationary term, beginning anew;
or (3) serve a probationary period that is extended for up to an additional two years. State
v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999) (citations omitted); see T.C.A. §§ 40-35-308, -
310, -311.

       Melton has failed to demonstrate that the trial court abused its discretion in revoking
his probation and reinstating his original sentence of incarceration. At the outset, it is
undisputed that Melton did not complete the drug court program and that he tested positive
for drug use while on probation. Through his own testimony, Melton admitted that “the
whole reason of leaving drug court was because [he] panicked when [he] failed a drug test.”
The record also supports a finding that Melton did not regularly report to his probation
officer or fully pay the restitution that he owed. Officer Pinkham testified that Melton had
“reported only a handful of times” and that he “did not pay more than $30 of restitution in
three-and-a-half years.” She also stated that Melton did not report his two arrests to her, even

                                                -5-
though he was required to do so. Although Melton asserts that the trial court erred in
admitting evidence of new charges without convictions, we note that compliance with State
law is an automatic condition of probation. State v. Stubblefield, 953 S.W.2d 223, 225
(Tenn. Crim. App. 1997); T.C.A. § 40-35-311(a). “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. Toussiant D. Turner, No. 01C01-9901-CC-00007, 1999 WL 787526, at
*2 (Tenn. Crim. App. Oct. 5, 1999); see also State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995) (“The trial judge has a duty at probation revocation hearings to adduce
sufficient evidence to allow him to make an intelligent decision.”); Harkins, 811 S.W.2d at
83, n.3. Here, the State presented evidence through the testimony of two arresting officers
who had personally observed that Melton had violated a State law. This proof was sufficient
to allow the trial court to make an intelligent judgment for the revocation of probation. See,
e.g., Toussiant D. Turner, No. 01C01-9901-CC-00007, 1999 WL 787526, at *2 (holding that
officer testimony was sufficient for the trial court to find by a preponderance of the evidence
that the probationer had committed another offense); see also State v. Andrew B. Edwards,
No. W1999-01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App. May 26, 2000)
(holding that the State must present testimony to establish the probationer’s commission of
another offense), perm. app. dismissed (Tenn. Sept. 11, 2000).

       Notwithstanding Melton’s evidentiary objections, the record contains substantial
evidence to support the conclusion of the trial court that a violation of a probation had
occurred. Once the trial court determined that Melton violated the terms of his probation,
it was authorized “to cause execution of the defendant’s original judgment as it was
originally entered.” Hunter, 1 S.W.3d at 647 (citing T.C.A. § 40-35-310). Although Melton
argues that he should be placed on community corrections, this court has repeatedly held that
“an accused, already on probation, is not entitled to a second grant of probation or another
form of alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01–9711–CC–00504,
1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999), perm. app. denied (Tenn. June 28,
1999). Based on the record, we cannot conclude that the trial court abused its discretion in
revoking Melton’s probation and ordering him to serve his original sentence in confinement.
Accordingly, he is not entitled to relief.

                                       CONCLUSION

       Upon our review, we affirm the judgment of the Anderson County Circuit Court.


                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE

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