         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 28, 2003

                   STATE OF TENNESSEE v. JASON D. SEILER

                       Appeal from the Circuit Court for Sullivan County
                        Nos. S39,955, S39,979    R. Jerry Beck, Judge



                                  No. E2002-02568-CCA-R3-CD
                                        December 1, 2003

The defendant, Jason D. Seiler, appeals from the Sullivan County Circuit Court’s revoking his
probation that he received for his guilty pleas to four counts of failure to appear. The defendant
contends that the trial court abused its discretion by revoking his probation and sentencing him to
confinement. We affirm the judgment of the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which GARY R. WADE, P.J., and ALAN
E. GLENN, J., joined.

Mark H. Toohey, Kingsport, Tennessee, for the appellant, Jason D. Seiler.

Paul G. Summers, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney General; H.
Greeley Wells, Jr., District Attorney General; and Joseph Eugene Perrin, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The defendant pled guilty to four counts of failure to appear, a Class E felony, and the trial
court sentenced him in March 2000 as a Range I, standard offender to consecutive one-year
sentences to be served on supervised probation. The record reflects that on August 12, 2001, the
defendant was driving a car in Scott County, Virginia, and had a wreck in which his passenger was
killed. As a result, the defendant was charged with reckless driving. On September 19, 2001, a
probation violation warrant was filed alleging that the defendant had violated the terms of his
probation by (1) failing to obey the laws of the United States or any state and (2) using illegal drugs.

       At the revocation hearing, Michelle Lyle Alaniz testified that her sister used to date and live
with the defendant. She said that on August 11, 2001, she bought Klonopin pills and twenty-five
Xanax pills from the defendant and that the defendant told her he smoked marijuana in order to calm
down. She said that the next day, the defendant was driving a car and had a wreck. She said her
sister was in the car with the defendant and was killed. She said that two days after her sister’s
death, she and her mother went to her sister’s and the defendant’s home and found marijuana, Xanax
pills, and other drugs. On cross-examination, she said that she tried to tell Virginia police and the
Scott County district attorney about the defendant’s drug use but that no one would listen to her.

        Joann Buice, the defendant’s probation officer, testified that she had been supervising the
defendant since February 2002. She said that someone else supervised the defendant until that time.
She said that the defendant had reported to her, that he had paid his probation fees, and that she had
had no problems with him. On cross-examination, Ms. Buice testified that the defendant’s last drug
test was on August 21, 2001, and that he had not been retested in over one year. She said that she
was unaware that the defendant had violated a previous community corrections sentence or that other
probation violation warrants had been filed against him.

        The defendant testified that he was convicted of reckless driving in Scott County, Virginia,
on June 5, 2002, and received a twelve-month sentence. He said that he did not sell Michelle Alaniz
Xanax or Klonopin pills on August 11, 2001, that he did not take any drugs without a prescription,
and that he had not smoked marijuana since 1995. He said that he was severely injured in the August
12, 2001 car wreck and that he had had three operations and months of physical therapy. On cross-
examination, the defendant testified that in 1995, he violated a community corrections sentence by
testing positive for marijuana. He said that he had been on several prescription medications since
the wreck and that the marijuana found in his and his girlfriend’s home did not belong to him.

        The parties stipulated to the fact that the defendant had violated the first condition of his
probation by committing reckless driving in Virginia. In support of its argument that the defendant
also had violated his probation by taking illegal drugs, the state introduced into evidence an August
12, 2001 toxicology report which showed that the defendant’s urine tested positive for marijuana and
benzodiazepine. The parties also stipulated to the fact that on August 21, 2001, the defendant
submitted another urine sample to his probation supervisor. The state introduced into evidence the
results of the urinalysis which showed that the defendant tested negative for marijuana and
benzodiazepine. The defense then introduced into evidence a letter from Dr. Joseph Saady, the Chief
Toxicologist for the Commonwealth of Virginia. According to the letter, Dr. Saady reviewed the
defendant’s August 12, 2001 urine test results and concluded that because marijuana and
benzodiazepine were detected in the defendant’s urine rather than his blood, their presence could not
be confirmed. Finally, the parties stipulated to the fact that Dr. Kenneth Ferslew, a toxicologist at
East Tennessee State University, would have testified for the state that urine test results are accurate
ninety-five to ninety-nine percent of the time and are reliable.

        The trial court determined that although the defendant had violated the first condition of his
probation by committing reckless driving in Virginia, the state had failed to prove that the defendant
had consumed marijuana, Xanax, or Klonopin before the August 12 wreck. Nevertheless, the trial
court stated that the defendant’s prior convictions, the seriousness of his reckless driving conviction,
and his having a prior probation sentence revoked warranted the defendant’s serving his sentences
in confinement.


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        The defendant contends that the trial court abused its discretion by revoking his probation
and ordering that he serve his sentences in incarceration. He argues that “reckless driving is a
relatively minor offense, especially in the State of Virginia, and that the Trial Court should have
extended his probation instead of ordering him to serve his sentence” in confinement. The state
claims that the trial court did not abuse its discretion. We agree with the state.

        A trial court may revoke probation upon finding by a preponderance of the evidence that the
defendant has violated a condition of probation. T.C.A. §§ 40-35-310, -311(e). If the trial court
revokes probation, it can “(1) order incarceration; (2) cause execution of the judgment as it was
originally entered; or (3) extend the remaining probationary period for a period not to exceed two
years.” State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The decision to revoke probation is within
the sound discretion of the trial court, and its judgment will be reversed only upon a showing of an
abuse of discretion, reflected in the record by an absence of substantial evidence to support the trial
court’s findings. State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

         In this case, the defendant admitted violating a term of his probation by committing reckless
driving in Scott County, Virginia. We do not believe he has demonstrated that the trial court abused
its discretion by ordering him to serve the remainder of his sentences in incarceration. To the
contrary, the trial court’s decision is supported by the fact that the defendant has violated a prior
probation or community corrections sentence and that his reckless driving resulted in the death of
his girlfriend. The judgment of the trial court is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, JUDGE




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