         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                            Assigned on Briefs October 27, 2004

        STATE OF TENNESSEE v. MICHAEL KEITH MASSENGILL

                       Appeal from the Circuit Court for Blount County
                         No. C-13914    D. Kelly Thomas, Jr., Judge



                   No. E2003-02836-CCA-R3-CD - Filed November 22, 2004


The defendant, Michael K. Massengill, appeals the revocation of his probation, arguing that the trial
court erred in failing to place him back on intensive probation or in the community corrections
program after he violated his probation. Following our review, we affirm the order of the trial court.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JERRY L. SMITH and J. C. MCLIN ,
JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal), and Mack Garner, District Public Defender
(at trial), for the appellant, Michael Keith Massengill.

Paul G. Summers, Attorney General and Reporter; Seth P. Kestner, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and Michael Gallegos, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                              FACTS

        On June 25, 2003, the defendant pled guilty in the Blount County Circuit Court to one count
of criminally negligent homicide, a Class E felony, which arose out of an automobile accident. The
trial court sentenced him to six years as a Range III, persistent offender, all suspended except for
sixty days to be served in the Blount County Jail, with the remainder to be served on intensive
probation. Among other conditions of probation, he was ordered to pay restitution for out-of-pocket
expenses and submit to a drug screen twice a month. On November 5, 2003, a probation violation
report was filed, alleging that the defendant had violated his probation by traveling outside the
county without the probation officer’s permission and testing positive for cocaine and methadone.
         At the defendant’s November 20, 2003, revocation hearing, his Knox County probation
officer, Allison Moody, testified that she began supervising the defendant on September 30, 2003,
after he was transferred from Blount County. At their first meeting on October 7, the defendant told
Moody he had been going to a methadone clinic in Chattanooga for treatment. She told him he
would no longer be able to travel to Chattanooga without her permission and a travel permit, and
he needed to have his records transferred to the Knoxville methadone clinic. At that meeting, a field
test on the defendant’s urine sample showed positive for cocaine and opiates. A laboratory test later
showed positive for cocaine and methadone. At their October 21 meeting, the defendant told Moody
that he had again traveled to the methadone clinic in Chattanooga without her permission, and a field
test showed positive for opiates. On November 4, he brought Moody a prescription dated November
2002 for “MS Contin” in an effort to explain the positive drug screens. At their November 12
meeting, before she could perform another drug screen, sheriff’s deputies arrived at the office and
arrested the defendant on the October 21 warrant.

        The defendant testified he transferred from his Blount County probation officer, Marcus
Miller, to Knox County after he lost his home due to his incarceration. He stated he suffered a
gunshot injury in 1996 and had undergone “seven or eight” surgeries as a result. He had taken “a
lot of MS Contin” to control the pain from those surgeries. He also stated, “I got strung out on the
MS Contin, so I try not to take it. So, I went to the methadone clinic for that. But it does help with
my pain and allows me not to take the MS Contin.” The defendant had been receiving treatment at
a methadone clinic in Knoxville, but was removed from the “active list” when he began serving his
sixty-day sentence. After his release from jail, he began going to a clinic in Chattanooga because
he was able to get in quicker due to the fact that it only treats about half the number of patients as
the Knoxville clinic. His Blount County probation officer knew about the defendant’s methadone
treatment, but “[h]e didn’t act like it was a problem” and “never really questioned” the defendant
about it. After his first meeting with Moody, the defendant went to the Knoxville clinic and was
placed on the waiting list but continued going to the Chattanooga clinic. When asked why he
continued going to Chattanooga even though Moody told him not to, the defendant stated, “I’m
under a doctor’s care there” and “She never mentioned a travel permit.” Additionally, the defendant
explained why he felt he could continue leaving the county without permission:

               So I did what she asked me to do, I got on the list. And I thought I
               could continue to go and get my methadone until I could get to Knox
               County and get in [there]. That was my thought. It wasn’t that I was
               doing something she told me not to do. I didn’t look at it like that.
               I wasn’t trying to break my probation, I can assure you.

        The defendant testified he used cocaine the day he got out of jail, but he wasn’t “dirty” at the
time of the October 7 drug screen. He denied testing positive for cocaine that day, saying, “I can
read that chart, too. I can read those dipsticks.” He said that he occasionally takes MS Contin for
pain and that he would do what he was ordered to do if restored to probation. He said he “probably”
drove himself to Moody’s office on October 7, the day the drug screen showed positive for cocaine
and opiates.


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        At the conclusion of the hearing, the trial court found that the defendant had violated the
conditions of his probation by using cocaine and leaving the county without permission and ordered
that he serve his six-year sentence in the Department of Correction.

        As to this appeal, we note that on November 24, 2003, the defendant filed both a notice of
appeal and a waiver of appeal. On December 10, 2003, he filed another notice of appeal. Since the
parties subsequently have proceeded as if the defendant wished to appeal, we have done likewise.

                                            ANALYSIS

       Although the defendant admits he violated the terms of his probation, he argues that he is an
“ideal candidate” for alternative sentencing and that he has demonstrated that, with proper
supervision from a probation officer who takes an active interest, he can successfully complete
probation.

        A trial court is granted broad authority to revoke a suspended sentence and 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. Tenn. Code Ann. §§ 40-35-310, -311
(2003). The revocation of probation lies within the sound discretion of the trial court. State v.
Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v. Stubblefield, 953 S.W.2d 223, 226 (Tenn. Crim.
App. 1997); State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). 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)). The proof of a probation violation need
not be established beyond a reasonable doubt, but it is sufficient if it allows the trial court 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)). We review this issue, therefore, for an abuse of
discretion.

       In determining that the defendant's probation should be revoked, the trial court stated:

                        The proof establishes clearly, to me, three violations from [the
               defendant] of his probation: Using crack cocaine the day that he was
               released from serving 45 days of a 60-day split confinement; using
               cocaine on or before October 7th, 2003, the date of the positive drug
               screen for cocaine; and traveling out of the county without a travel
               permit after having been told that he needed one by his probation
               officer.

                       ....




                                                 -3-
                       My thought is that the likelihood of [the defendant]
               rehabilitating himself and following the law is not good. And the
               reason I come to that conclusion is simply that a person who was
               charged with vehicular homicide, pled guilty to a criminally negligent
               homicide that arose out of blacking out, or whatever, in the middle of
               the afternoon and running through the front wall of a house and
               killing an elderly lady sitting in a chair holding her granddaughter or
               some baby, and only had to serve 45 days in jail because of that – and
               I’m not saying that that wasn’t an appropriate disposition, but I’m
               saying anybody that has any chance at all of being rehabilitated is not
               going to come out of jail after being involved in that kind of a crime
               with those kinds of – with a death, and then hit a crack pipe that very
               day. That speaks volumes as to how much this whole episode
               impressed you about what you were supposed to do and not do.

                      And I don’t think the public safety can chance your continued
               driving to methadone clinics and using cocaine every month or two.
               And I just think it’s a danger. And you’ve had an opportunity to
               show that this tragedy was an out-of-the-ordinary thing that wouldn’t
               be repeated and you certainly haven’t done anything to show me that
               you have the responsibility necessary to ensure that that doesn’t
               happen again. So, I’m not going to risk it.

        The defendant’s probation officer testified that the defendant told her he left the county
multiple times without permission and he tested positive for cocaine on a drug screen. The
defendant himself admitted to smoking crack cocaine the day he got out of jail and to leaving Knox
County several times without the permission of his probation officer or a travel permit. Accordingly,
we conclude that the trial court did not abuse its discretion in revoking the defendant’s probation and
reinstating his original sentence.

                                          CONCLUSION

       Based upon the foregoing authorities and reasoning, we affirm the judgment of the trial court
revoking the defendant’s probation and ordering that he serve his six-year sentence in the
Department of Correction.

                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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