         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                 AT KNOXVILLE October 21, 2014 Session

                STATE OF TENNESSEE v. EPHRAIM J. NIELSEN

                     Appeal from the Circuit Court for Sevier County No.
                                15983-IIIRex H. Ogle, Judge




                No. E2014-00038-CCA-R3-CD          - Filed February 9, 2015



After entering a conditional guilty plea to robbery pursuant to Tennessee Code Annotated section
40-35-313, Ephraim J. Nielsen (“the Defendant”) was arrested on charges of burglary, vandalism
over $1,000, and theft of property valued over $1,000 but less than $10,000. Based upon the new
charges, his probation officer filed a probation violation warrant against him. After a hearing, the
trial court revoked the Defendant’s probation and ordered him to serve the balance of his sentence.
In this appeal, the Defendant argues that his probation should not have been revoked because the
State did not offer proof of every element of the new charges against him. We affirm the judgment
of the trial court.


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


ROBERT L.HOLLOW AY ,JR .,J., delivered the opinion of the Court, in whichJAMES CURW OOD
WITT , JR ., and D. KELLY THOMAS , JR ., JJ., joined.

Bryce W. McKenzie, Sevierville, Tennessee, for the appellant, Ephraim J. Nielsen.

Robert E. Cooper, Attorney General and Reporter; Lacy Wilber, Senior Counsel; James Dunn,
District Attorney General; and Patrick Harrell, Assistant District Attorney General, for the appellee,
State of Tennessee.

                                             OPINION

                              Factual and Procedural Background


                                                 -1
        On April 19, 2011,1the Defendant entered a guilty plea to robbery. On June 2, 2011, a
Stipulation Regarding Sentencing (“the Stipulation”) signed by the parties and the trial judge was
entered. The Stipulation recites that the Defendant pleaded guilty to robbery in case number
15983 and to fraudulent use of a credit card and theft under the value of $500 in case number
15984. The Stipulation states the Defendant was “deferral eligible” which we interpret to mean a
“qualified defendant” pursuant to Tennessee Code Annotated section 40-35-313. At a subsequent
sentencing hearing, the trial court placed the Defendant on five years’ supervised probation as a
function of section 40-35-313 judicial diversion.2While on probation, the Defendant was arrested
for burglary, vandalism over $1,000, and theft of property valued over $1,000 but less than
$10,000. The Defendant’s probation officer filed a violation of probation warrant, alleging that
the Defendant violated the conditions of his probation by, among other things, committing new
offenses.3

                               Bifurcated Probation Revocation Hearing

       On October 29, 2013 and December 10, 2013, the trial court conducted a probation
revocation hearing. The hearing was bifurcated to allow the State to produce a fingerprint expert.

         Michael Gulley had supervised the Defendant’s probation for a little over two years and
filed the violation of probation warrant against the Defendant. During that time, the Defendant
regularly reported to the probation office and passed all drug screens. Additionally, he was
making payments toward his fines and court costs, although those payments were sometimes
minimal.




1

        This is the date shown on the Judgment in case number 15983 sentencing the Defendant to five years,
signed by the trial judge on December 10, 2013, and entered in the Circuit Court for Sevier County on
October 6, 2014. Another judgment signed on September 4, 2012, and entered September 5, 2012, does not
show a date the plea was entered and does not provide a term of years for the sentence.
2

       A Corrected Order of Deferral (Judicial Diversion) was entered on April 21, 2014, nunc pro tunc
for August 12, 2011, deferring sentence and placing the Defendant on five years’ probation.
3

        The violation of probationwarrant also alleged that theDefendanthadfailed to pay finesandcourt costs.
However, attheprobation revocation hearing, the State informed the trial courtthat itwas proceeding with the
violation solely on the grounds that the Defendant had committed new offenses.

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        In February, 2013, Detective Tim Williams of the Gatlinburg Police Department responded
to a report of a burglaryat the Brookside Resort in Gatlinburg. Several items were reported stolen
and the laundry room vending machine had been damaged in what appeared to be an effort to pry
it open. Detective Williams took fingerprints from the area around the damaged locking mechanism
and inside lip of the vending machine. Detective Williams subsequently sent the fingerprints to the
Tennessee Bureau of Investigation (“TBI”) for identification.4

        Detective Williams interviewed the Defendant at the police department on June 27, 2013,
after the Defendant came to the police station voluntarily. The Defendant denied involvement in the
burglary. When Detective Williams asked if the Defendant had ever been inside the Brookside
Resort’s office or laundry room, the Defendant stated that he had never been on the Brookside Resort
property. After Detective Williams’ questioning, the Defendant left the police station.

       TBI Special Agent David Howell testified that he analyzed the latent fingerprints sent by
Detective Williams. Agent Howell determined that there were five identifiable fingerprints and
two identifiable palm prints, none of which matched the owner of the Brookside Resort. After
completing a fingerprint search in the Automated Fingerprint Identification System (“AFIS”)
database, Agent Howell determined that two of the latent fingerprints found atthe scene matched
the Defendant’s fingerprints. Both fingerprints were found in the laundry room–one from the
laundry vending machine5and the other from a washing machine. On cross-examination,Agent
Howell stated thathe had notbeen provided the Defendant’s name before AFIS identified the
Defendant as a “hit” for the fingerprints. Additionally, Agent Howell noted that the latent
fingerprints he received from Detective Williams were partial prints. However, he also stated that
he had never seen a full fingerprint–not even on a fingerprint card.

        Officer Daniel Herron of the Gatlinburg Police Department testified that he received a
be-on-the-lookout (“BOLO”) call for a “four-door, older model, red, American” car in connection
with the Brookside Resort burglary. Officer Herron stopped several cars matching that description,
including the 2001 Mitsubishi driven by the Defendant. The Defendant consented to a search of his
vehicle, but nothing linking the Defendant to the Brookside Resort burglary was found.

        On cross-examination,OfficerHerronstatedthathestoppedtheDefendant’s carabout 15 to 30
minutes after he received the BOLO call. On redirect, Officer Herron admitted that the BOLO call
did not contain any information about the car’s being “especially beat up” or having a large dent in


4

         The Defendant objected to Detective Williams’ testifying as to the results of the TBI fingerprint
analysis. To allow the State to call the TBI expert as a witness, the trial court continued the hearing until
December 10, 2013. However, before the trial court recessed for the day, it allowed Detective Williams to
complete his testimony.
5

        The record does not reflect whether the fingerprint matched to the Defendant was found on the
outside of the vending machine or on the inside lip of the vending machine.

                                                     -3
the hood or trunk. He further confirmed that the BOLO call identified a red, older model, American
car.

        Taylor Nielsen had been dating the Defendant since May 2012, and they were living together
in early February 2013. They only had one vehicle, a 2001 Mitsubishi Galant. The car was maroon,
almost purple; the entire hood was dented in, the trunk was duct-taped, and the side-view mirror was
screwed on. The Defendant would drive the car to and from work, to run errands, and to drive her
to work and pick her up when her shift ended. Ms. Nielsen and the Defendant lived “almost across
the street” from the Brookside Resort, and according to Ms. Nielsen they sometimes did their laundry
in the Brookside Resort laundry room because the laundry facilities at their residence were frequently
out of order. Ms. Nielsen stated that the Defendant had a friend who worked at the Brookside Resort
and would let them into the laundry room. She further stated that the Defendant accompanied her
to the Brookside Resort laundry on at least one occasion in December 2012 or January 2013, and that
he touched both the washing machine and the vending machine while there. On crossexamination,
Ms. Nielsen said she never saw the Defendant reach around and grab the inside lip of the vending
machine to try to pull it open. She further stated that she believed the Defendant was pulled over by
the police when he was driving to pick her up from work–around six a.m.

         In its ruling revoking the Defendant’s probation, the trial court noted that this was a close
case but stated that the “tipping point” was the fact that the Defendant flatly denied ever having been
on the Brookside Resort property even though his fingerprints were found there and Ms. Nielsen
testified that he had done laundry there.

       By a Violation of Probation Order signed and entered on December 12, 2013, the trial court
revoked the Defendant’s probation and ordered him to serve the balance of his sentence. A Corrected
Violation of Probation Order was signed and entered on September 16, 2014, “nunc pro tunc
December 10, 2014.” 6The corrected order set aside the Defendant’s deferral on case numbers 15983
and 15984, ordered the Defendant to serve the balance of his sentence, and ordered judgments of
conviction to be entered. On December 10, 2013, a Judgment sentencing the Defendant to five years
was signed. This Judgment was entered October 6, 2014.


                                                  Analysis

       The Defendant’s sole issue on appeal is whether the trial court erred in revoking his
probation and judicial diversion because the State did not present evidence that the burglary,
vandalism, and theft offenses were committed without the effective consent of the victim. The
Defendant argues that, even when applying the lower preponderance of the evidence standard,

6

         Based on the fact that the second day of the revocation hearing was December 10, 2013, and the fact
that the nunc pro tunc date December 10, 2014, is after, not before, the date the order was signed and entered,
we believe the date December 10, 2014, was a clerical error and that the order was entered nunc pro tunc
December 10, 2013.

                                                      -4
the State must prove every element of the crime allegedly committed by the Defendant while he
was probation. Because the State did not provide any evidence that the alleged
offensesoccurredwithoutthe owner’seffective consent,the Defendantcontends that the order
revoking his probation should be reversed and the violation warrant dismissed. The State argues
that the trial court reasonably inferred from the record that the owner had not given his effective
consent.

        The trial court may revoke a defendant’s probation when it finds, by a preponderance of
the evidence, that a defendant has violated the conditions of probation. Tenn. Code Ann. §
40-35-311(e)(1) (2010). This decision rests within the sound discretion of the trial court. State v.
Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). If probation is revoked, the defendant
has a right to appeal. Tenn. Code Ann. § 40-35-311(e)(2) (2010). On appeal, we review
revocations of probation under an abuse of discretion standard, rather than a de novo standard.
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order for this Court to find that a trial court
abused its discretion in revoking a defendant’s probation, the record mustcontain no substantial
evidence to supportthe trial court’s conclusion thatthe defendant violated the conditions of
probation. Id.; State v. Terry Maples, No. E2011-01441-CCA-R3CD, 2012 WL 525486, at *4
(Tenn. Crim. App. Feb. 17, 2012) perm. app. denied, (Tenn. May 16, 2012); State v. Kendrick,
178 S.W.3d 735, 738 (Tenn. Crim. App. 2005).

       In cases where the alleged violation is the commission of a new offense, the State must
present sufficient facts to allow the trial court to find by a preponderance of the evidence that the
conduct in question violated the law.” The violation need not be proven beyond a reasonable doubt.
In making its decision, the trial court may not rely solely on the arrest or the indictment to revoke
probation. Terry Maples, 2012 WL 525486, at *4 (citing State v. Adams, 650 S.W.2d 383, 383
(Tenn. Crim.App. 1983)). However, a police officer’s testimony about the facts surrounding the
arrest may be used to support a revocation of probation. State v. Eric L. Abell, No.
M2006-01981-CCA-R3-CD, 2007 WL 2088949, at *5 (Tenn. Crim. App. 2007).

         In this case, Detective Williams testified that he responded to a call for a burglary at the
Brookside Resort. During his investigation, he dusted for fingerprints around the damaged locking
mechanism of the laundry room vending machine. Two of the latent fingerprints found in the laundry
room matched the Defendant, at least one of which came from the laundry room vending machine.
The Defendant’s statement to police, in which he flatly denied that he had ever been on the
Brookside Resort property, was directly contradicted by the circumstantial evidence that his
fingerprints were found in the laundry room and by the direct evidence of Ms. Nielsen’s testimony
that the Defendant had accompanied her to the Brookside Resort to do laundry. Based on the record,
we conclude that there was sufficient basis for the trial court to reasonably infer that the owner or
operator of Brookside Resort had not given the Defendant consent to burglarize the building, to
vandalize the vending machine, or to steal property. The trial court did not abuse its discretion when
it revoked the Defendant’s probation.

                                            Conclusion


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For the foregoing reasons, we affirm the judgment of the trial court.




                                              _________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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