         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 6, 2002

              STATE OF TENNESSEE v. JASON ALLEN MOBLEY

                        Appeal from the Circuit Court for Henry County
                             No. 12908    Julian P. Guinn, Judge



                 No. W2001-02022-CCA-MR3-CD - Filed November 15, 2002


The defendant, Jason Allen Mobley, appeals as of right from the Henry County Circuit Court’s
revoking his eight-year probation. The defendant contends that the trial court erroneously revoked
his probation without sufficient proof that he was using drugs. We affirm the trial court.

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

JOSEPH M. TIPTON, J., delivered the opinion of the court, in which THOMAS T. WOODA LL and JOHN
EVERETT WILLIAMS, JJ., joined.

Victoria L. DiBonaventura, Paris, Tennessee (at trial); Guy T. Wilkinson, District Public Defender;
and W. Jeffery Fagan, Assistant District Public Defender (on appeal), for the appellant, Jason Allen
Mobley.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General; G.
Robert Radford, District Attorney General; and Steven L. Garrett, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                              OPINION

        The defendant pled guilty to possession of cocaine with intent to manufacture, deliver, or sell,
a Class B felony, and possession of marijuana with intent to manufacture, deliver, or sell, a Class E
felony. Pursuant to his plea agreement, he received concurrent sentences of eight years and two
years, respectively, to be served on supervised probation. The defendant began his effective eight-
year probationary term on September 28, 1999. On May 3, 2000, a probation violation warrant
issued stating that a laboratory analysis of the defendant’s urine sample submitted on April 14, 2000,
confirmed use of marijuana and hydrocodone.

        At the probation revocation hearing, defense counsel stated that the defendant was before the
court “because he smoked marijuana and did some other drug.” She argued that the defendant was
addicted to drugs, was unable to stop using them on his own, and should be placed in long-term drug
treatment instead of incarcerated. The state noted that the defendant had been convicted of other
drug related charges and that drug screens revealed that he had continued to use drugs. Defense
counsel stated that she could have the defendant testify and that his reason for selling drugs was to
get money to support his own drug addiction. The trial court revoked the defendant’s probation,
finding beyond a reasonable doubt that he used controlled substances while on probation. It ordered
the defendant to serve his effective eight-year sentence in the Department of Correction and
recommended that the defendant be evaluated for drug use and afforded any necessary treatment.

        On appeal, the defendant argues that the trial court erroneously revoked probation without
taking appropriate proof regarding his drug screen test results. He notes that no technician testified
regarding the laboratory report nor did the state submit an affidavit certifying the results in the report.
The state contends that the defendant has waived this issue by failing to challenge the laboratory
results at the probation revocation hearing. It also argues that the defendant admitted through his
attorney that he had violated his probation by using drugs. We agree with the state.

        A trial court may revoke probation upon finding by a preponderance of the evidence that the
defendant has violated a condition of probation. Tenn. Code Ann. §§ 40-35-310, -311(e). If the
trial court revokes probation, it can “(1) order incarceration; (2) cause execution of the judgment as
it was originally entered; or (3) extend the remaining probationary period for a period not to exceed
two years.” State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The decision to revoke probation is
within the sound discretion of the trial court, and its judgment will be reversed only upon a showing
of an abuse of discretion, reflected in the record by an absence of substantial evidence to support the
trial court’s findings. State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997) (citation
omitted).

         Our supreme court has held that probation revocation based upon drug use as revealed by a
laboratory report violates due process when the technician who prepared the report did not testify
at the revocation hearing, the state made no showing of good cause in failing to call the technician,
and no significant indicia of the reliability of the report existed. State v. Wade, 863 S.W.2d 406, 410
(Tenn. 1993). The present case is distinct from the circumstances in Wade. Here, the defendant did
not challenge the laboratory report at the revocation hearing, and counsel acknowledged that the
defendant had used drugs while on probation. Because he did not object on these grounds at the
revocation hearing, he cannot prevail on this issue on appeal. T.R.A.P. 36(a).

        We note that the laboratory report in question was not entered into evidence at the revocation
hearing. Instead, the only evidence before the court was defense counsel’s statements regarding the
defendant’s use of drugs while on probation. We take these statements as proffers and admissions
on the part of the defendant. We also note that although the state did not present proof that the
defendant was to refrain from using illegal drugs as a condition of probation, the defendant is
deemed to be on notice that his conduct must conform to the requirements of the law. See State v.
Stubblefield, 953 S.W.2d 223, 225 (Tenn. Crim. App. 1997). In any event, due process requires the
evidence against a defendant in a revocation proceeding be disclosed to the defendant, who has the
right to confront and cross-examine adverse witnesses unless good cause is shown for disallowing


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confrontation. See Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761-62 (1973); Wade,
863 S.W.2d at 408. In other words, the revocation must be based upon evidence in the record and
not the arguments of the parties.

       In the present case, it is apparent that the defendant chose to admit his substantial drug
problem through counsel in the hope that the trial court would sentence him to an alternative to
incarceration combined with drug treatment. The trial court’s comments at the revocation hearing
reveal that the trial court believed the defendant’s sudden desire for drug treatment to be
disingenuous and long overdue. Such credibility determinations are within the province of the trial
court. The defendant’s admitted drug use provides substantial evidence based upon which the trial
court may revoke probation. We discern no abuse of discretion on the trial court’s behalf.

       Based upon the foregoing and the record as a whole, we affirm the trial court’s judgment
revoking probation.



                                             ___________________________________
                                             JOSEPH M. TIPTON, JUDGE




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