                                                                                          08/30/2019
           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 23, 2019

     STATE OF TENNESSEE v. DOMINIQUE ALEXANDER BOOKER
                    Appeal from the Criminal Court for Knox County
                     No. 108641, 109764     G. Scott Green, Judge



                              No. E2018-00777-CCA-R3-CD
                        _____________________________

In 2017, the Defendant, Dominque Alexander Booker, pleaded guilty to three counts in
two separate cases, and the trial court sentenced him to a probationary sentence. In 2018,
the Defendant’s probation officer filed a probation violation warrant alleging that the
Defendant had violated his probation by committing assault and vandalism and by not
notifying his probation officer of the new offenses. After an evidentiary hearing, the trial
court revoked the Defendant’s probation sentences for both cases. On appeal, the
Defendant contends that the trial court erred when it admitted into evidence the police
officer’s recount of the victim’s statements about the assault as an excited utterance over
the Defendant’s hearsay objection. After review, we affirm the trial court’s judgment.

 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 THOMAS T.
WOODALL, and ROBERT H. MONTGOMERY, JR., JJ., joined.

Cameron D. Bell, Knoxville, Tennessee, for the appellant Dominique Alexander Booker.

Herbert H. Slatery III, Attorney General and Reporter; Katharine K. Decker, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ashley McDermott,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

        This case arises from new arrests while the Defendant was serving a probation
sentence. On August 3, 2016, a Knox County grand jury indicted the Defendant for two
counts of attempted first-degree murder and two counts of employing a firearm during
the commission of a dangerous felony. On January 27, 2017, the Defendant pleaded
guilty to two counts of facilitation to commit attempted second degree murder. The trial
court entered the agreed concurrent sentence of four years, at 30%, to be served on state
probation. The judgment of conviction states that the Defendant’s probation was
conditioned upon him not thereafter violating any laws and the Defendant’s complying
with the rules of probation.

       In July 2017, the Defendant’s probation officer filed a probation violation warrant
stating that the Defendant had failed two drug screens for marijuana. The trial court
therefore ordered enhanced supervision, in part, because the Defendant had a history of
drug use. It also ordered that the Defendant complete a drug and alcohol rehabilitation
program while in custody as a condition of being placed on enhanced probation.

       On August 25, 2017, the Defendant pleaded guilty to intent to sell 0.5 grams or
more of cocaine, and he received a ten-year probationary sentence, to run concurrently
with his four-year probation sentence. On August 29, 2017, the trial court found the
Defendant guilty of violating a law of the State of Tennessee based upon the cocaine
conviction, and it ordered that the Defendant be placed on enhanced probation for three
years and 143 days, to expire January 15, 2021.

        On March 8, 2018, the trial court found that the Defendant had failed to comply
with the conditions of his probation by engaging in criminal conduct, i.e. committing an
assault and vandalism on March 6, 2018. The affidavit further alleged that the Defendant
failed to contact his probation officer and report his arrest.

       The trial court held an evidentiary hearing, during which the parties presented the
following evidence: The State informed the trial court that it did not anticipate that the
victim would appear in court but that it intended to present proof through the police
officer who responded to the call about this incident. The State alleged that the
Defendant had violated his probation by both committing criminal conduct and not
reporting his arrest for committing criminal conduct. The Defendant’s attorney objected
to the officer’s testimony arguing that the officer’s testimony constituted hearsay, which
violated even the lower hearsay standard of a probation revocation hearing.

       Officer Matthew Janish, with the Knoxville Police Department, testified that he
responded to a call on March 6, 2018, that involved a domestic assault between the
victim and her boyfriend, the Defendant. When he arrived, he found the victim
“extremely upset . . . crying . . . and a little fearful.” The officer observed a large bruise
on the victim’s forehead that looked to be turning purple and blue. Officer Janish took
two pictures of the bruise, both of which the trial court admitted into evidence.

       The State asked about the conversation that occurred between the victim and the
officer, and the Defendant objected on hearsay grounds. The trial court asked the officer
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if the conversation occurred “right after” the incident with the Defendant, and the officer
said that it had. The trial court ruled that the victim’s statements were admissible
pursuant to the excited utterance exception to the hearsay rule.

       Officer Janish continued that the victim told him that the Defendant had come to
her home the night before this incident and also the morning before the officer responded.
The two argued over the Defendant’s taking the victim’s vehicle without permission, and
the Defendant “headbutted” her in the forehead. The victim also showed the officer her
shattered iPhone. She said that, after the Defendant “headbutted” her, he grabbed her
phone, took it outside, and threw it down to the parking lot. The victim said that, when
she went to retrieve the phone, the Defendant shoved her to the ground and kicked her in
the leg.

       During cross-examination, Officer Janish testified that the victim told him that the
incident occurred “first thing in the morning.” Officer Janish described the victim as
“extremely upset and fearful that [the Defendant] was going to return.” The officer was
uncertain what time the victim called 911. The victim’s young child was present in the
home when the officer arrived.

       Jacob White, an officer with the Tennessee Department of Correction, Enhanced
Probation, testified that he supervised the Defendant. He testified that, upon entering
supervision, the rules are explained clearly and carefully to each defendant. The
Defendant began supervision through enhanced probation on September 26, 2017. The
second condition of the Defendant’s probation sentence stated: “I will report all arrests,
including traffic violations, immediately regardless of the outcome to my probation
officer.” Mr. White testified that the Defendant never reported any arrests to him,
including his arrest for domestic assault on March 6, 2018, or his arrest for vandalism on
March 16, 2018.

      During cross-examination, Officer White testified that the Defendant’s most recent
meeting with probation was earlier in the month of March. The Defendant met with
another probation officer, Paula Bothof, who was transferring her cases to Mr. White.
Mr. White said that he had not yet personally met with the Defendant because their first
meeting had been scheduled for March 20, 2018, after the Defendant’s arrest.

      Officer White testified that Ms. Bothof told him that, a few weeks before the
Defendant’s arrest, the victim told Ms. Bothof that the Defendant had been out drinking
and missed his curfew.

      The defense called Ms. Bothof as a witness. Ms. Bothof testified that she
supervised the Defendant while he was on enhanced probation. She said that the
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Defendant did not fail any drug screens while under her supervision and attended classes
as directed. She agreed that, overall, the Defendant had been a “very compliant
probationer.”

       Ms. Bothof testified that a female called her and said that the Defendant had been
out drinking past his curfew. Later, another female called her and stated that she had
made up the allegations about the Defendant because she was upset with him.

      During cross-examination, Ms. Bothof testified that she was not sure if the second
female caller was the same as the first.

       The Defendant testified that since he had been placed on enhanced probation, he
had been working and passing drug screens. The Defendant said that the victim lied
when she said he “headbutted” her, just as she had lied in the past. He said he could not
prove that she was lying but that the fact that he had been “straight” for seven months
should weigh in his favor.

      The trial court stated:

             Well, then she’s a very effective liar . . . because I believe that you
      assaulted her based on the testimony of the police officer.

             You’ve received significant breaks already. And you’ve had an
      attempted first degree murder, which is a class A felony, with a gun
      stack[ed] on top of that, that was pled down all the way to facilitation [of ]
      second degree murder, four years of probation.

             You had a school zone cocaine which was, once again, another A
      felony where you would’ve had to do one hundred percent of not less than
      15 years with a gun stack on top of that. That was pled down to ten years
      of probation and these two cases to run together.

             I am confident that I told you back in August what I told you and the
      time’s come. I mean, you assaulted her, this Court finds you assaulted her.

       After a hearing, the trial court revoked the Defendant’s probation and ordered that
he serve the balance of his sentence in incarceration.

      It is from this judgment that the Defendant now appeals.

                                      II. Analysis
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        On appeal, the Defendant contends that the trial court abused its discretion when it
allowed Officer Janish to testify about the victim’s hearsay statements because the State
failed to establish and the trial court failed to make findings of a good cause and
reliability. The State counters that the trial court, by its ruling, implicitly found that there
was a good cause to justify the admission of the hearsay statements and that the
statements were reliable. The State further posits that any error was harmless because
there was other evidence to establish that the Defendant violated the terms of his
probation.

        The issue before this Court is whether the trial court erred when it revoked the
Defendant’s probation based upon the evidence presented at the revocation hearing. A
trial court is granted broad authority to revoke a suspended sentence and to reinstate the
original sentence if it finds by the preponderance of the evidence that the defendant has
violated the terms of his or her probation and suspension of sentence. T.C.A. §§ 40-35-
310, -311. The standard of review for questions related to probation or any other
alternative sentence is “‘an abuse of discretion standard of review, granting a
presumption of reasonableness to within-range sentencing decisions that reflect a proper
application of the purposes and principles of our Sentencing Act.’” State v. Caudle, 388
S.W.3d 273, 278-79 (Tenn. 2012) (citing State v. Bise, 380 S.W.3d 682, 707 (Tenn.
2012). To show an abuse of discretion in a probation revocation case, “a defendant must
demonstrate ‘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.’” State v.
Wall, 909 S.W.2d 8, 10 (Tenn. Crim. App. 1994) (quoting State v. Delp, 614 S.W.2d 395,
398 (Tenn. Crim. App. 1980)).

       A defendant at a probation revocation proceeding is not entitled to the full array of
procedural protections associated with a criminal trial. See Black v. Romano, 471 U.S.
606, 613 (1985); Gagnon v. Scarpelli, 411 U.S. 778, 786-90 (1973). However, such a
defendant is entitled to the “minimum requirements of due process,” including: (1)
written notice of the claimed violation(s) of probation; (2) disclosure to the probationer of
evidence against him or her; (3) the opportunity to be heard in person and to present
witnesses and documentary evidence; (4) the right to confront and cross-examine adverse
witnesses (unless good cause is shown for not allowing confrontation); (5) a neutral and
detached hearing body, members of which need not be judicial officers or lawyers; and
(6) a written statement by the fact-finder regarding the evidence relied upon and the
reasons for revoking probation. Gagnon, 411 U.S. at 786; Morrissey v. Brewer, 408 U.S.
471, 489 (1972); State v. Wade, 863 S.W.2d 406, 408 (Tenn. 1993).

      We first note that the trial court was within its discretion when it revoked the
Defendant’s probation solely on the basis that the Defendant failed to report his arrests to
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his probation officer. The Defendant was being supervised by enhanced probation,
having previously violated his probation, and he understood that the conditions of his
release included reporting new arrests to his probation officer. He failed to do so. As
such, considering our standard of review, this is a sufficient basis upon which we could
affirm the trial court’s judgment.

        That said, the trial court, in its order revoking the Defendant’s probation, stated
that it accredited the police officer’s testimony about the assault and that it believed that
the Defendant had assaulted the victim, who did not testify against the Defendant.
Accordingly, we will address whether the trial court erred when it admitted the police
officer’s testimony.

       Generally, “[a]dmission of evidence is entrusted to the sound discretion of the trial
court, and a trial court’s ruling on evidence will be disturbed only upon a clear showing
of abuse of discretion.” State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004). The
Tennessee Rules of Evidence provide that all “relevant evidence is admissible,” unless
excluded by other evidentiary rules or applicable authority. Tenn. R. Evid. 402. Of
course, “[e]vidence which is not relevant is not admissible.” Id. Relevant evidence is
defined as evidence “having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” Tenn. R. Evid. 401. Even relevant evidence, however,
“may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence.” Tenn. R.
Evid. 403. Evidence which qualifies as “hearsay” is also excluded from admission at
trial. Under Tennessee Rule of Evidence 801, “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” However, there are exceptions to the hearsay rule, one
of which is an excited utterance. See Tenn. R. Evid. 803(2).

       Pursuant to Rule of Evidence 803(2), the hearsay rule does not exclude “[a]
statement relating to a startling event or condition made while the declarant was under the
stress of excitement caused by the event or condition.” Tenn. R. Evid. 803(2).
“Underlying the excited utterance exception is the theory that ‘circumstances may
produce a condition of excitement which temporarily stills the capacity of reflection and
produces utterances free of conscious fabrication.’” State v. Franklin, 308 S.W.3d 799,
823 (Tenn. 2010) (quoting State v. Land, 34 S.W.3d 516, 528 (Tenn. Crim. App. 2000)).
Three requirements must be met for a statement to qualify as an excited utterance:

             The first requirement is a startling event or condition that suspends
       the normal, reflective thought processes of the declarant. Second, the
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       statement must relate to the startling event or condition. This broad
       requirement offers considerable leeway such that the statement may
       describe all or part of the event or condition, or deal with the effect or
       impact of that event or condition. The third and final requirement dictates
       that the declarant make the statement while under the stress or excitement
       from the event or condition. This requirement considers a variety of
       factors, including the interval of time between the startling event and the
       statement.

Id. (footnotes, citations, and internal quotation marks omitted). The excited utterance
exception also has a competency requirement where “the declarant must have had an
opportunity to observe the facts contained in the extrajudicial statement.” Land, 34
S.W.3d at 529. The “‘ultimate test’” of whether a statement is admissible within the
excited utterance exception is “‘spontaneity and logical relation to the main event and
where an act or declaration springs out of the transaction while the parties are still
laboring under the excitement or strain of the circumstances and at a time so near it as to
preclude the idea of deliberation and fabrication.’” Franklin, 308 S.W.3d at 823 (quoting
State v. Smith, 857 S.W.2d 1, 9 (Tenn. 1993)).

       We conclude that Officer Janish’s testimony concerning the statements made to
him by the assault victim was admissible as “excited utterances.” Officer Janish testified
that he arrived at the victim’s home “right after” the alleged assault and that, when he
arrived, he found the victim “extremely upset . . . crying . . . and a little fearful.” Officer
Janish also testified that the victim immediately reported that the Defendant had
headbutted her and that he observed an injury to the victim’s head consistent with the
victim’s allegations. In light of the victim’s appearance, her physical condition, and the
short interval between the assault and her statements, we find that the statements were
admissible as “excited utterances.” The Defendant is not entitled to relief on this issue.

                                      III. Conclusion

       In accordance with the foregoing reasoning and authorities, we affirm the trial
court’s judgment.

                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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