        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs October 1, 2013

           STATE OF TENNESSEE v. WESLEY CHAD BOUTERIE

                   Appeal from the Circuit Court for Hardin County
                       No. 9260     C. Creed McGinley, Judge


              No. W2013-00625-CCA-R3-CD - Filed November 15, 2013


The Defendant, Wesley Chad Bouterie, appeals the Hardin County Circuit Court’s order
revoking his probation for convictions for selling one-half gram or more of
methamphetamine and selling four oxycodone tablets and ordering his effective eight-year
sentence into execution. The Defendant contends that the trial court abused its discretion by
revoking his probation. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which J ERRY L. S MITH and
N ORMA M CG EE O GLE, JJ., joined.

Guy T. Wilkinson, District Public Defender; and Frankie Stanfill, Assistant Public Defender,
for the appellant, Wesley Chad Bouterie.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Hansel J. McCadams, District Attorney General; and Eddie N. McDaniel, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       On October 12, 2010, the Defendant pleaded guilty to two counts of selling controlled
substances and was sentenced to an effective eight years on probation after serving 120 days
in confinement. On August 10, 2011, a probation violation report was submitted to the trial
court, alleging that the Defendant violated the probation condition prohibiting him from
excessive use of intoxicants or possessing narcotic drugs or marijuana. The report alleged
that the Defendant was discharged from Tri-County Outreach Rehabilitation after testing
positive for cocaine and benzodiazepines. The report stated that the Defendant entered the
rehabilitation program in May 2011 and was discharged on August 4, 2011. On October 14,
2011, the probation violation warrant was dismissed, and the Defendant was returned to
probation.

       On October 11, 2012, a probation violation report was submitted to the trial court,
alleging that the Defendant tested positive for methamphetamine, amphetamine,
benzodiazepine, and marijuana after being treated at the Hardin County Medical Center. On
October 11, 2012, a probation violation warrant was issued and is the subject of this appeal.

       At the revocation hearing, the Defendant admitted violating the conditions of his
probation by testing positive for drugs when he was treated for injuries he sustained after
being robbed at gunpoint and pistol whipped. Counsel told the trial court that the Defendant
was prescribed “some of the drugs” for which he tested positive, although he did not identify
the prescribed drugs. The Defendant asked for the court’s permission to attend “Teen
Challenge,” an outpatient program, in lieu of serving his sentence. Counsel stated that John
Crane offered to hire the Defendant as a painter if he were permitted to attend Teen
Challenge.

        The trial court stated at the beginning of the revocation hearing that a previous
probation violation warrant was filed and that it recalled being “offended” because the
rehabilitation center had the Defendant working at a “beer joint.” The prosecutor stated that
he had a colleague investigate the Defendant’s claim that the rehabilitation center required
him to work at a bar. The prosecutor told the court that the Defendant’s story “did not hold
water.” The court noted that it gave the Defendant “a break” on the previous violation and
that the Defendant had tested positive for “a drugstore” at the hospital. The court noted that
even if the Defendant was prescribed some of the medications for which he tested positive,
he did not have a prescription for marijuana unless he was diagnosed with cancer and that
it was unlikely he was prescribed amphetamines. No evidence was presented regarding the
Defendant’s prescription medications.

       The trial court stated that it did not believe the Defendant’s excuses and found that
the Defendant willfully and defiantly violated the conditions of his probation by testing
positive for drugs. The court noted that it provided the Defendant multiple opportunities to
“reform his conduct to the requirements of the law.” The court revoked the Defendant’s
probation and ordered his eight-year sentence into execution. This appeal followed.

        The Defendant contends that the trial court abused its discretion by revoking his
probation. He argues that the State failed to establish by a preponderance of the evidence
that he violated the conditions of his probation because he was receiving medical treatment
for injuries incurred when he was robbed and pistol whipped and was prescribed “some of



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the drugs” found in his bloodstream. The State responds that the court properly revoked the
Defendant’s probation. We agree with the State.

        A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined
by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991) (citing
Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)). If a trial court revokes a
defendant’s probation, its options include ordering confinement, ordering the sentence into
execution as originally entered, returning the defendant to probation on modified conditions
as appropriate, or extending the defendant’s period of probation by up to two years. T.C.A.
§§ 40-35-308(a), (c), -310 (2010); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999).
The judgment of the trial court in a revocation proceeding will not be disturbed on appeal
unless there has been an abuse of discretion. See State v. Williamson, 619 S.W.2d 145, 146
(Tenn. Crim. App. 1981). In order for this court to find an abuse of discretion, “there must
be no substantial evidence to support the conclusion of the trial court that a violation of the
conditions of probation has occurred.” State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001).

        The Defendant admitted violating a condition of his probation because he tested
positive for methamphetamine, amphetamine, benzodiazepine, and marijuana. Although the
Defendant claimed that he received medical treatment after sustaining injuries from an
armed robbery, this assertion, even if true, does not justify his using the substances found
in his bloodstream. Likewise, although the Defendant claimed to be prescribed “some of
the drugs” found in his bloodstream, no prescriptions were presented to the court, and
counsel did not identify the substances the Defendant was allegedly prescribed. The trial
court found that the Defendant had tested positive for “a drugstore” and noted that unless
the Defendant was diagnosed with cancer, he did not have a prescription for marijuana and
that it was unlikely he was prescribed amphetamines. No evidence was presented showing
otherwise. The court properly found that the Defendant violated his probation. Upon
finding that the Defendant violated a condition of his probation, the court had the authority
to revoke his probation and order his eight-year sentence into execution. The trial court did
not abuse its discretion.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.


                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE



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