       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               January 16, 2013 Session

                 STATE OF TENNESSEE v. BENJI L. CREECH
                  Appeal from the Circuit Court for Dickson County

                  No. 22CC-2010-CR-223 George C. Sexton, Judge

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                No. M2012-01861-CCA-R3-CD - Filed April 26, 2013

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On January 19, 2011, appellant, Benji L. Creech, pled guilty to selling oxycodone, a
schedule II drug, in violation of Tennessee Code Annotated section 39-17-417. Appellant
received a sentence of three years in the Tennessee Department of Correction, which was
suspended to probation. On February 8, 2012, his probation was revoked. In lieu of
serving his three-year sentence in the Department of Correction, appellant entered the
drug court program. On June 14, 2012, appellant was summarily dismissed from the drug
court program upon the allegation that he falsified a sponsor contact sheet. After a
hearing on July 25, 2012, appellant’s probation was revoked again. On appeal, he argues
that the evidence does not support the trial court’s decision to revoke his probation and
serve his sentence in confinement. We disagree and affirm the trial court’s judgment.

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

P AUL G. S UMMERS, Sr.J., delivered the opinion of the Court in which J OSEPH M. T IPTON,
P.J., and J AMES C URWOOD W ITT, Jr., J., joined.

Olin J. Baker, Charlotte, Tennessee, for the defendant-appellant, Benji L. Creech.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Dan M. Alsobrooks, District Attorney General; and Sarah W. Wajnarowski, Assistant
District Attorney General for the appellee, State of Tennessee.

                                       OPINION

                               I.   Facts and Background

        On January 19, 2011, the appellant, Benji L. Creech, pled guilty to selling
oxycodone, a schedule II drug, in violation of Tenn. Code Ann. § 39-17-417. Appellant
received a sentence of three years in the Tennessee Department of Correction, which was
suspended to probation. On February 8, 2012, appellant’s probations was revoked for
testing positive for amphetamines, oxycodone and marijuana. Appellant admitted that he
had smoked marijuana and taken his aunt’s oxycodone.

        Rather than serving his three-year sentence in the penitentiary, appellant was
allowed to serve an additional year of probation and enter the drug court program.
Appellant entered the drug court program on April 12, 2012. On June 14, 2012, appellant
was terminated from the drug court program for falsifying a sponsor contact sheet from
May 31, 2012 to June 6, 2012. As a result of his termination from drug court, a probation
violation hearing was conducted on July 25, 2012. At the hearing, appellant was
represented by counsel and testified in his defense. The court found that appellant had
violated the terms of his probation by failing to complete drug court.

        Appellant argues that his termination from the drug court program was a
“unilateral” termination “for no substantive reason.”       He further argues that the
termination for falsifying the contact sheet was improper because he was in “substantial
compliance” with the rules of the drug court.

                                  II. Law and Argument

         A decision to revoke probation rests in the sound discretion of the trial court and
will not be overturned on appeal without a finding of an abuse of discretion. State v.
Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995). The appellate court reviews the
“trial court’s decision under an abuse of discretion standard, not a de novo standard. State
v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Relief can be granted only when the trial
court’s logic and reasoning were improper when viewed in light of the factual
circumstances and relevant legal principles involved.” 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 for a reviewing court to be warranted in finding 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. Harkins, 811 S.W.2d at 82; State v. Conner, 919 S.W.2d 48, 50
(Tenn. Crim. App. 1995).

        In this case, we conclude that the reasoning and logic of the trial court were sound
and there was sufficient evidence to support the conclusion of the trial judge that
appellant had violated conditions of his probation. Despite appellant’s attempts to
classify the decision to terminate him from the drug court program as “unilateral,”
appellant was given an opportunity to explain the reasons for his falsification of the drug
court paperwork but chose to remain silent on the issue. Only after being asked about the




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paperwork and failing to come up with a sufficient explanation was he terminated from
the program.

         Even if appellant’s termination from the program had been “unilateral,” he was
given a separate probation violation hearing in which he was represented by counsel and
testified in his defense. After hearing his explanation for the false paperwork, the trial
court found the appellant to be in violation of the terms of his probation and sentenced the
appellant to serve his sentence in the Department of Correction. In probation violation
hearings, the credibility of the witness is for the determination of the trial judge, who is in
the best position to observe witness demeanor. State v. Beard, 189 S.W.3d 730, 735
(Tenn. Crim. App. 2005).

                                      III. Conclusion

       Appellant’s probation violation was well reasoned and supported by sufficient
evidence. For these reasons, we affirm the judgment of the trial court.




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                                          P AUL G. S UMMERS, Senior Judge




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