         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 23, 2007

STATE OF TENNESSEE v. CHRISTOPHER NATHANIEL RICHARDSON

                Direct Appeal from the Criminal Court for Davidson County
                           No. 2005-I-401 Steve Dozier, Judge



                   No. M2006-01060-CCA-R3-CD - Filed March 15, 2007



The Defendant, Christopher Nathaniel Richardson, pled guilty to one count of possession of a
controlled substance with the intent to deliver, and he was sentenced as a Range II multiple offender
to seven years of supervised probation, with the first year to be served on intensive probation. After
two probation violation warrants were issued based upon two arrests and other violations, the trial
court revoked the Defendant’s probation and ordered him to serve his sentence in confinement. It
is from this judgment that the Defendant now appeals, contending that, while the trial court was
within its discretion to revoke his probation, his violation does not warrant the imposition of his
entire sentence. Concluding there exists no error, we affirm the judgment of the trial court.

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

ROBERT W. WEDEMEYER , J., delivered the opinion of the court, in which DAVID H. WELLES and
THOMAS H. WOODALL, JJ., joined.

Emma Rae Tennent (on appeal), Graham Prichard and Kyle F. Mothershead (at hearing), Nashville,
Tennessee, for the appellant, Christopher Nathaniel Richardson.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; Rachel Sobrero, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION
                                              I. Facts

        This case arises from the revocation of the Defendant’s probation. The Defendant originally
pled guilty to possession of a controlled substance with the intent to deliver. At the Defendant’s
guilty plea hearing, on April 14, 2005,the State told the court that, had the case gone to trial, the
evidence would prove that “on March eighth, two-thousand-five, Metro Police executed a narcotics
search warrant at the Defendant’s residence . . . and during the execution recovered a bag of white
rocks from his bedroom closet in a blue box. . . . [The] [s]ubstance was field-tested positive for
cocaine base.” The Defendant agreed that the evidence would prove those facts, and he offered a
plea of guilty to possession of a controlled substance for resale. The trial court imposed on the
Defendant, a Range II offender, a sentence of seven years of probation, with the first year being
intensive probation.

        On August 1, 2005, a probation violation warrant was issued alleging that the Defendant had
violated his probation by being arrested and charged with being in unlawful possession of a handgun
during his curfew hours, by not reporting the arrest to his probation or parole officer, by not verifying
employment, and not paying court costs. On August 26, 2005, the trial court sustained this probation
violation warrant and took the issue of the Defendant’s punishment under advisement.

        On March 10, 2006, a second probation violation warrant was issued alleging that the
Defendant was arrested for possession or casual exchange of a controlled substance and that the
Defendant did not report this arrest to his probation officer. On March 29, 2006, at a hearing on the
probation violation warrant, Bradley Nave testified that he is an officer with the Metro-Nashville
Police Department. On March 4, 2006, he responded to a call to a residence at 12:30 a.m. where he
found the Defendant holding a small baby. The Defendant stated that he was there to see his child.
When Officer Nave looked around, he saw in the interior of a seat, six inches from the Defendant,
a small plastic bag that appeared to contain marijuana. The officer asked the Defendant if the bag
was his, and the Defendant said “no.” The only other people at the residence were an infant child
and the Defendant’s ex-girlfriend, and the officer took the Defendant into custody. The officer said
that a trial judge determined that possession was not proven beyond a reasonable doubt and
dismissed the case. On cross-examination, the officer agreed that nothing was found on the
Defendant’s person and that the Defendant did not appear under the influence of marijuana.

        The Defendant’s probation officer, Peter Kambitsis, testified that as part of the Defendant’s
intensive probation he has a 6:00 p.m. curfew. Because the Defendant had provided proof from his
employer that he works at night, this curfew was waived, but only for the Defendant to be at work.
Kambitsis testified that the arrest for possession was not reported to him. On cross-examination,
Kambitsis agreed that the Defendant had been reporting to him “religiously” and only missed
reporting dates when he was incarcerated. The Defendant told Kambitsis about the arrest after
Kambitsis asked him about it. Kambitsis agreed that the Defendant was previously on electronic
monitoring and had no irregularities, including no positive drug screens, during that time. Further,
Kambitsis agreed that as far as he knew the Defendant was still employed.

       The trial court noted that the Defendant had tested positive in a drug screen on the day of the
hearing and asked the Defendant’s attorney if he was prepared to defend that allegation. The
Defendant’s attorney responded that he was prepared to respond to that allegation.

        The Defendant called Nikylan Donato with the Public Defender’s Office who testified that
she represented the Defendant at his bench trial on the charge of simple possession. She said that
Officer Nave testified at the trial that the Defendant was not on the lease of the apartment where the
drugs were found, that he did not have any marijuana on his person, and that he did not seem to be


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under the influence of marijuana. The officer also testified that, when he entered the apartment, the
Defendant was standing up with his child in front of a chair and that behind the chair was a table on
which the marijuana was found.

        The Defendant testified that he was aware that he had tested positive for marijuana on the
drug screen that he took the day of trial. He said that was because he had smoked marijuana while
he was on probation but said that he had only done so once. The Defendant said that, since he had
been on probation, he had been working as a janitor as much as seven days a week and taking care
of his daughter. Further, he had taken six drug screens while on probation, and all of them came
back clean.

       With regard to his background, the Defendant testified that he began selling drugs at thirteen
because both of his parents used drugs. He said that he had not sold drugs at all since he had been
on probation and that he was trying to be a different man and a good father. The Defendant agreed
that he made one mistake by smoking marijuana and asked to be placed back on electronic
monitoring. The Defendant said that his daughter was with him everyday and that he took care of
her.

       Upon questioning by the trial court, the Defendant explained that the day that he was arrested
for marijuana possession, his daughter was not with him because his ex-girlfriend had taken her after
an argument. When he went to see his daughter at his ex-girlfriend’s house, she called the police.
The Defendant said that he was not supposed to go to his ex-girlfriend’s house. The Defendant told
the court that he was trying to be a productive citizen.

        On cross-examination, the Defendant testified that he smoked marijuana since March 4,
2006, and he smoked it while incarcerated. The Defendant said that he smoked the marijuana with
other inmates, but he did not know their names. The Defendant denied that he had a drug problem.
About the night that he was arrested, the Defendant testified that his ex-girlfriend asked him to leave,
and he told her he would leave when he had to go to work, which was at 1:00 a.m.

      Based upon this evidence, the trial court sustained this warrant and took the issue of the
Defendant’s punishment under advisement. In its final order, the trial court found:

       The defendant has been on felony probation two (2) times according to his record
       with three (3) prior violations. As suggested above, the Court is of the opinion that
       after taking the opposing arguments and proof into consideration, the suitable
       resolution to the issue is to order the defendant’s sentence to be placed into effect.”

       It is from that judgment that the Defendant now appeals.

                                             II. Analysis

       On appeal, the Defendant concedes that the trial court did not abuse its discretion in finding


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that he had violated a condition of his probation. He, however, contends that his violation does not
warrant the imposition of his entire seven year sentence in continuous confinement. He asks this
Court to reinstate his probation.

        When a trial court determines by a preponderance of the evidence that a probationer has
violated the conditions of his or her probation, the trial court has the authority to revoke probation.
Tenn. Code Ann. § 40-35-311(e) (2006). Upon finding that the defendant has violated the conditions
of probation, the trial court may revoke the probation and either: (1) order incarceration; (2) order
the original probationary period to commence anew; or (3) extend the remaining probationary period
for up to two additional years. State v. Hunter, 1 S.W.3d 643, 644 (Tenn. 1999); see Tenn. Code
Ann. § 40-35-310 (2006); Tenn. Code Ann. § 40-35-311(e) (2006); Tenn. Code Ann. § 40-35-308(c)
(2006). The defendant has the right to appeal the revocation of his probation and entry of his original
sentence. Tenn. Code Ann. § 40-35-311(e). Upon a finding of a violation, the trial court is vested
with the statutory authority to “revoke the probation and suspension of sentence and cause the
defendant to commence the execution of the judgment as originally entered . . . .” Tenn. Code Ann.
§ 40-35-311(e); Hunter, 1 S.W.3d at 646 (holding that the trial court retains the discretionary
authority to order the defendant to serve his or her original sentence in confinement). Furthermore,
when probation is revoked, “the original judgment so rendered by the trial judge shall be in full force
and effect from the date of the revocation of such suspension . . . .” Tenn. Code Ann. § 40-35-310.
The trial judge retains the discretionary authority to order the defendant to serve the original
sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).

         The decision to revoke probation is in the sound discretion of the trial judge. State v.
Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810 S.W.2d 733, 735
(Tenn. Crim. App. 1991). The judgment of the trial court to revoke probation will be upheld on
appeal unless there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). To find an abuse of discretion in a probation revocation case, the record must be void of any
substantial evidence that would support the trial court’s decision that a violation of the conditions
of probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614
S.W.2d 395, 398 (Tenn. Crim. App. 1980). Proof of a probation violation is sufficient if it allows
the trial court to make a conscientious and intelligent judgment. State v. Milton, 673 S.W.2d 555,
557 (Tenn. Crim. App. 1984). In reviewing the trial court’s finding, it is our obligation to examine
the record and determine whether the trial court has exercised a conscientious judgment rather than
an arbitrary one. Mitchell, 810 S.W.2d at 735. In our view, after exercising a conscientious
judgment as to whether or not a Defendant has violated the terms of a probated sentence, the trial
court must also exercise a conscientious rather than arbitrary judgment as to an appropriate
disposition. State v. Steven Kelly Fraze, No. M2005-01213-CCA-R3-CD, 2006 WL 618300, at *9
(Tenn. Crim. App., at Nashville, Mar. 13, 2006), no Tenn. R. App. P. 11 application filed.

       In this case, the Defendant admitted a violation of the terms of probation. This alone is
substantial evidence of record to support the trial court’s revocation order. See State v. Eric D.
Devaney, No. E2005-01986-CCA-R3-CD, 2006 WL 2373469, at *4 (Tenn. Crim. App., at
Knoxville, Aug. 17, 2006), no Tenn. R. App. P. 11 application filed; State v. Michael Emler, No.


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01C01-9512-CC-00424, 1996 WL 691018, at *2 (Tenn. Crim. App., at Nashville, Nov. 27, 1996)
(holding where the defendant admits a violation of the terms of probation, revocation by the trial
court is neither arbitrary nor capricious), no Tenn. R. App. P. 11 application filed. We understand
the Defendant’s contention that he should not be made to serve his entire original sentence because
he only technically violated his probation. In our view, after exercising a conscientious judgment
as to whether or not a Defendant has violated the terms of a probated sentence, the trial court must
also exercise a conscientious rather than arbitrary judgment as to an appropriate disposition.

        We conclude that the trial court did not abuse its discretion in this case. The record proves
that the Defendant had previously violated his probation by carrying a handgun and missing his
curfew hours. Further, on this occasion, the Defendant was at his ex-girlfriend’s house after his
curfew, which was a violation. The Defendant was charged with possession of marijuana, and he
failed to report this charge to his probation officer. Finally, on the day of his hearing to revoke his
probation, the Defendant tested positive for marijuana and admitted smoking the same with other
inmates in the jail. We conclude that, based upon the evidence presented, the trial court exercised
a conscientious judgment rather than an arbitrary one when it ordered the Defendant to serve his
sentence in prison. Therefore, the Defendant is not entitled to relief on this issue.

                                          III. Conclusion

      We agree with the judgment of the trial court. Accordingly, we affirm the revocation of the
Defendant’s probation and the imposition of his sentence.


                                                       ___________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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