                                                                                         09/06/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs June 27, 2017

            STATE OF TENNESSEE v. ADAM D. LITTLE, ALIAS

                  Appeal from the Criminal Court for Knox County
                       No. 98984 Steven W. Sword, Judge



                            No. E2016-02385-CCA-R3-CD



The Defendant, Adam D. Little, alias, appeals as of right from the Knox County Criminal
Court’s revocation of his probation and reinstatement of the remainder of his nine-year
sentence for selling less than fifteen grams of heroin within 1,000 feet of a public park.
On appeal, the Defendant asserts that the trial court abused its discretion by revoking his
probation because the State failed to establish that he violated the law by a preponderance
of the evidence. Following our review, we affirm the judgment of the trial court.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Adam M. Elrod, Knoxville, Tennessee, for the appellant, Adam D. Little, alias.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Charme P. Allen, District Attorney General; and Kenneth F. Irvine, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                    OPINION
                              FACTUAL BACKGROUND

       On April 18, 2013, the Defendant pled guilty to selling less than fifteen grams of
heroin within 1,000 feet of a public park, a Class B felony. See Tenn. Code Ann. § 39-
17-417, -432. In exchange for his plea, the Defendant received a nine-year sentence as a
Range I, standard offender “to serve” in the Department of Correction, and this sentence
was to run concurrently with a prior sentence. A second delivery count was dismissed.
       Thereafter, a violation of probation affidavit and warrant were filed against the
Defendant on August 17, 2016. Specifically, it was alleged therein that the Defendant
violated the conditions of his probation by failing “to obey the law” as a result of his
August 14, 2016 arrest in Knox County for simple possession and by failing to report that
charge to his probation officer.

       At the November 3, 2016 revocation hearing, Lieutenant Tony Willis with the
Knoxville Police Department (“KPD”) testified that he had been with the KPD for almost
twenty-one years and that a large portion of his career had been devoted to working
narcotics investigations. On August 14, 2016, Lt. Willis assisted with a 12:34 a.m. traffic
stop on James Avenue near Wallace Street in Knoxville. Lt. Willis approached the
passenger side of the vehicle and encountered the Defendant. Lt. Willis described the
Defendant as “very cooperative” during the traffic stop.

       After approaching the passenger side, Lt. Willis immediately saw “a plastic
cellophane baggie tied in a knot that appeared to contain a narcotic substance” in the
Defendant’s lap. At Lt. Willis’s request, the Defendant handed him the bag. Lt. Willis
then performed a “comparison of the [pills’] physical qualities,” like its markings, color,
and size, and determined that the three pills inside the bag were oxymorphone, a
Schedule II controlled substance. According to Lt. Willis, he had performed this type of
analysis “many times in the past” and could not ever recall “a discrepancy” between his
field analysis and subsequent laboratory testing.

       On cross-examination, Lt. Willis confirmed that he was “not a chemist” and had
“not done a chemical analysis of any substance in [his] career[.]” Lt. Willis believed that
the substance in this case was sent to the laboratory for testing, but he had not seen any
report confirming that the pills were oxymorphone. Lt. Willis further testified that he had
never seen any counterfeit oxymorphone.

       Lt. Willis reiterated that, in his twenty-one years’ experience, the substance he
took from the Defendant “was verified with the physical properties described by the
manufacturer on the website, it physically was consistent with the appearance, the shape,
the size, of oxymorphone.” He confirmed that he “pulled up” the manufacturer’s website
from the internet to perform this comparison. Moreover, in Lt. Willis’s opinion, it was
not common “for someone to have in their possession pills wrapped up in a cellophane
baggie tied in a knot with altruistic purposes in mind.” Lt. Willis verified that he “had
input” in generating a warrant for the Defendant’s arrest based upon the Defendant’s
possession of these three oxymorphone pills.1



1
    According to defense counsel, this warrant was dismissed for failure to prosecute.
                                                      -2-
        Lt. Willis agreed that he had a brief conversation with the Defendant during the
traffic stop. However, Lt. Willis was not privy to the conversation that the Defendant had
“with a couple of other officers” because Lt. Willis was occupied “doing the pill
identification.” Additionally, Lt. Willis could not recall whether he asked the Defendant
if the pills belonged to him or if the Defendant ever admitted that the pills were his.
However, Lt. Willis averred that, when he approached the vehicle, the pills were “in [the
Defendant’s] lap, and [the Defendant’s] lap alone.”

       The Defendant testified in his own defense. The Defendant stated that he was
released from the penitentiary in October 2013, after he completed “boot camp,” so he
had been on probation for approximately three years. According to the Defendant, his
probation had gone “[v]ery well” up until his August 14, 2016 arrest. The Defendant
claimed that he maintained gainful employment, regularly paid his fines, court costs, and
fees, and kept his appointments with his probation officer.

        According to the Defendant, he worked from six in the morning until noon on
August 14, 2016. After getting off work, he went to his mother’s house and then later to
his girlfriend’s house. However, as a condition of his probation, he was required to live
with his mother, so around midnight that evening, the Defendant’s cousin, Demetrius
Taylor, picked the Defendant up to give the Defendant a ride back to his mother’s house.
The Defendant testified that Mr. Taylor did not take him immediately home, instead
taking a detour through Mechanicsville to visit one of Mr. Taylor’s friends. The
Defendant claimed that he did not have any other choice but to ride with Mr. Taylor
because it was about an hour walk home from his girlfriend’s house.

       While driving through Mechanicsville, they were stopped by the police, but they
were not doing anything wrong, according to the Defendant. The Defendant testified
that, when the police car’s blue lights were activated, Mr. Taylor pulled out a bag and
placed it in the Defendant’s lap. The Defendant maintained that he had no knowledge of
this bag prior to this time. According to the Defendant, he handed the bag back to Mr.
Taylor and told Mr. Taylor that he had “to take his own charge.”

        The Defendant testified that Mr. Taylor asked the officer why they had been
stopped, and the officer said something “to the effect of he [had] seen the car earlier that
day.” It was then that Lt. Willis walked up to the passenger side of the car and asked the
Defendant what was in his lap. The Defendant said he responded, “My cigarettes, my
lighter, and my phone.” When Lt. Willis probed, “No. What’s in the bag?” the Defendant
was very surprised that the bag was still in his lap. The Defendant said that he did not
know what was in the bag when he handed it to Lt. Willis. According to the Defendant,
he told Lt. Willis that the pills did not belong to him, but he did not convey this same
information to any of the officers that he spoke with on the scene.

                                            -3-
       On cross-examination, the Defendant acknowledged that he had been arrested for
possession of drug paraphernalia and possession of “legend drugs” on October 30, 2014.
However, the Defendant claimed that the charges were dismissed because he had a
prescription for the drugs, which he thought were hydrocodone pills. According to the
Defendant, he was prescribed the pain pills following a car wreck. Additionally, the
Defendant did not recall being charged with several driving offenses on November 6,
2014—those offenses being listed as driving while his license was suspended, leaving the
scene of an accident, and failing to show proof of insurance. The Defendant also did not
remember being arrested for driving without a license on November 8, 2014, and
pleading guilty to that charge or pleading guilty to driving without a license on January
10, 2015.

       According to the Defendant, when Lt. Willis queried about the bag in the
Defendant’s lap, the Defendant looked at Mr. Taylor, and Lt. Willis noticed him looking
at Mr. Taylor. Lt. Willis then got the Defendant out of the car and said, “I kind of know
what’s going on.” The Defendant was asked what he saw when he looked down in his
lap the second time after being questioned by Lt. Willis: “I see a small bag. [Mr. Taylor]
handed me one bag, and it could have been that bag inside another bag, and I handed it
back to him. So it could have fell out [of] the bag on my lap.” The Defendant then
assented “that the couple of pills that [he] got caught with may [have] only be[en] part of
what was there[.]”

       On redirect, the Defendant acknowledged that he had a series of driving offenses
in late 2014 through early 2015. He averred that he was only driving to work, but he
claimed that he stopped doing that when he kept getting cited for it.

      Following the hearing, the trial court found that the Defendant had violated his
“boot camp release” and ordered the Defendant to serve the balance of his nine-year
sentence in confinement. In rendering its decision, the trial court reasoned as follows:

             Well, the [c]ourt doesn’t find [the Defendant’s] story to be credible. .
      . . Lieutenant Willis found the pills in his lap. . . . I don’t have any doubt
      whatsoever that these were oxymorphone. . . . These pills when they’re
      stamped, they’re not—it’s not like we’re just saying this is a white oval pill.
      They actually have numbers and—they can tell exactly what manufacturer
      it was based upon the stamps, and Lieutenant Willis has testified that he’s
      got a lot of experience in identifying these, and so I have no doubt they are
      what they were, plus, they were packaged for resale.

            The [D]efendant’s defense in this is, is that he wasn’t knowingly
      possessing this, and that it belonged to another person. Again, the [c]ourt
      doesn’t find him credible in that. If this were a situation where he was on
                                            -4-
       probation—or received probation in the beginning and this was his first
       violation here, I would certainly consider something alternative to sending
       him back to the penitentiary, but he took a sentence to serve on a [C]lass B
       felony. I think it was heroin that we’re dealing with originally. . . . I don’t
       think he learned anything in boot camp.

The Defendant filed a timely notice of appeal.

                                        ANALYSIS

        The Defendant contends that the trial court abused its discretion when it
determined that he violated the law by a preponderance of the evidence. Specifically, the
Defendant notes that “the State did not present any evidence or testimony showing that
the Defendant had any reason to have been aware of the baggie of pills before Mr. Taylor
placed it in the Defendant’s lap,” that the pills were actually oxymorphone, or “that the
Defendant had any basis to know what the pills inside the closed baggie were.” The State
responds that the trial court properly exercised its discretion in revoking the Defendant’s
probation and ordering him to serve the remainder of his nine-year sentence in
confinement. The State asserts, “because there was substantial evidence to support the
trial court’s findings, the trial court properly found that the [D]efendant had violated the
terms of his probation by being arrested on new charges.”

       A trial court may revoke a sentence of probation upon finding by a preponderance
of the evidence that the defendant has violated the conditions of his release. Tenn. Code
Ann. § 40-35-311(e). If the trial court revokes the probation, it has the right to “extend
the defendant’s period of probation supervision for any period not in excess of two (2)
years,” “commence the execution of the judgment as originally entered,” or “[r]esentence
the defendant for the remainder of the unexpired term to any community-based
alternative to incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e). In a
probation revocation hearing, the credibility of the witnesses is determined by the trial
court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

        Furthermore, 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); Mitchell, 810
S.W.2d at 735. 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, “it must be
established 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.” Id. (citing
State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim.
App. 2011). Such a finding “‘reflects that the trial court’s logic and reasoning was
                                             -5-
improper when viewed in light of the factual circumstances and relevant legal principles
involved in a particular case.’” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001)
(quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

        In order to establish a violation of a suspended sentence based on the commission
of a new offense, the State must offer proof by a preponderance of the evidence showing
that a defendant violated the law. See State v. Catherin Vaughn, No. M2009-01166-
CCA-R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim. App. June 14, 2010) (noting that
proof of a conviction is not necessary). Moreover, this court has previously held that a
trial court may premise a revocation upon proven allegations of a violation warrant, even
if the charges have been dismissed. State v. Delp, 614 S.W.2d 395, 396-97 (Tenn. Crim.
App. 1980) (concluding that revocation may be based upon criminal acts alleged in the
violation warrant even though the defendant was acquitted of charges for the underlying
acts); State v. Agee Gabriel, No. M2002-01605-CCA-R3-CD, 2004 WL 1562551, at *3
(Tenn. Crim. App. July 12, 2004) (holding that “validity of the original warrant was not
affected by the dismissal of the criminal charges arising from the acts alleged in the
warrant”); State v. Larry D. Turnley, No. 01C01-9403-CR-00094, 1994 WL 714227, at
*3 (Tenn. Crim. App. Dec. 22, 1994) (“The fact that the [d]efendant was not convicted of
any of the offenses with which he was charged does not mandate dismissal of the
probation violation warrant.”). However, the State “must present sufficient facts at the
revocation hearing to enable the trial court to ‘make a conscientious and intelligent
judgment as to whether the conduct in question violated the law.’” State v. Jason L.
Holley, No. M2003-01429-CCA-R3-CD, 2005 WL 2874659, at *4 (Tenn. Crim. App.
Oct. 25, 2005) (quoting Harkins, 811 S.W.2d at 83 n.3).

         Lt. Willis testified that he assisted with the traffic stop involving the Defendant on
August 14, 2016. Upon approaching the passenger side of the vehicle, he observed “a
plastic cellophane baggie tied in a knot that appeared to contain a narcotic substance” in
the Defendant’s lap. According to Lt. Willis, the bag was “in [the Defendant’s] lap, and
[the Defendant’s] lap alone.” Lt. Willis, relying on his twenty-one years’ experience as a
law enforcement officer, further testified that it was not common “for someone to have in
their possession pills wrapped up in a cellophane baggie tied in a knot with altruistic
purposes in mind.” On the scene, Lt. Willis examined the three pills inside the bag,
compared them to the manufacturer’s website, and determined that they were “physically
. . . consistent with the appearance, the shape, the size, of oxymorphone.”

       The trial court found the Defendant’s explanation for possessing the pills to be
unbelievable. Again, the credibility of the witnesses is determined by the trial court, see
Mitchell, 810 S.W.2d at 735, and this finding is certainly supported by the record.
According to the Defendant, Mr. Taylor did nothing wrong before he was stopped by the
police. The Defendant believed that he had performed “[v]ery well” on probation despite

                                              -6-
his arrests for drug possession, which included possession of drug paraphernalia, and his
convictions for multiple driving offenses. Additionally, the Defendant even acquiesced
“that the couple of pills that [he] got caught with may [have] only be[en] part of what
was” in the vehicle that evening, even though no other pills were found.

        We disagree with the Defendant that Lt. Willis’s testimony was insufficient to
establish that the Defendant had control over the bag, that the pills were in fact
oxymorphone, or that the Defendant knew he possessed a controlled substance. This
court has previously concluded that a police officer’s testimony about the facts
surrounding the arrest used as the basis for the violation “constituted substantial
evidence” and was “sufficient to support the trial court’s [revocation of a suspended
sentence].” State v. Jeremy Bo Eaker, No. M2013-01639-CCA-R3-CD, 2014 WL
546348, at *5 (Tenn. Crim. App. Feb. 11, 2014) (quoting State v. Chris Allen Dodson,
M2005-01776-CCA-R3-CD, 2006 WL 1097497, at *3 (Tenn. Crim. App. Mar. 31,
2006)) (concluding that officer’s testimony “was straight-forward: upon executing a
traffic stop, he found [the defendant] in possession of drug paraphernalia and a white
powder, which he stated, based upon his experience as a law enforcement officer and as a
drug task force agent, appeared to be methamphetamine[,]” and provided a sufficient
basis for revoking probation).

        The trial court was within its discretion to determine that the Defendant violated
the conditions of his probation by a preponderance of the evidence. Lt. Willis’s
testimony alone established that the Defendant violated the law. Thereafter, it was within
the trial court’s authority to order the Defendant to serve the balance of his previously
imposed nine-year sentence in confinement upon revoking the Defendant’s probation.
See Tenn. Code Ann. §§ 40-35-310, -311(e); see also Mitchell, 810 S.W.2d at 735.

                                    CONCLUSION

     Upon consideration of the foregoing and the record as a whole, we affirm the
judgment of the trial court.



                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




                                           -7-
