         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     August 2000 Session

            STATE OF TENNESSEE v. HELEN I. CUMBERBATCH

                    Appeal from the Criminal Court for Hamilton County
                            No. 21683   Rebecca J. Stern, Judge



                                 No. E2000-00047-CCA-R3-CD
                                      September 8, 2000

The Defendant appeals as of right from the trial court's revocation of her community corrections
sentence. She argues that the trial court erred in revoking her community corrections sentence based
on unreliable, undocumented hearsay evidence that she had failed a drug screen. The State asserts
that the Defendant has waived appellate review of the admission of the hearsay evidence because
she failed to object at the hearing. We hold that the trial judge properly considered the hearsay
evidence, and she did not abuse her discretion in revoking community corrections because the
evidence was sufficient to establish by a preponderance of the evidence that the Defendant had
violated the conditions of community corrections by using cocaine. Accordingly, we affirm the
judgment of the trial court revoking the Defendant's community corrections sentence.

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

DAVID H. WELLES, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ROBERT
W. WEDEMEYER , JJ., joined.

Ardena J. Garth, District Public Defender; Donna Robinson Miller, Assistant District Public
Defender, for the appellant, Helen I. Cumberbatch.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General; Bill
Cox; District Attorney General, and Yolanda D. Mitchell, Assistant District Attorney General, for
the appellee, State of Tennessee.

                                            OPINION

        On September 29, 1998, the Defendant, Helen I. Cumberbatch, pleaded guilty in Hamilton
County to theft in an amount over $1,000.00. She received a four-year sentence to be served on
probation, and she was ordered to pay restitution and to submit to random drug screens. As a result
of failed drug screens, the Defendant's probation was revoked on June 14, 1999, and she was ordered
to serve her sentence in the Hamilton County Community Corrections Program. She remained
subject to random drug screens. On October 5, 1999, the community corrections program filed a
"Request for Capias," alleging that the Defendant had failed a drug screen on September 30, 1999.
The community corrections officer, Brayton Floyd, requested that the court either incarcerate the
Defendant for thirty to sixty days and then require drug treatment upon release or remove the
Defendant from the community corrections program.

        On December 13, 1999, a hearing was held to determine whether the Defendant's community
corrections sentence should be revoked. The only witness was Brayton Floyd, the Defendant's
community corrections officer. He testified that the program administered four random drug screens
to the Defendant between June 14, 1999 and September 30, 1999, and all four screens were returned
negative for drug use. However, on September 30, 1999, the program again administered a drug
screen, which "was returned positive for cocaine use." This testimony was the only evidence of any
drug use by the Defendant. The Defendant did not object to the testimony or challenge this evidence
in any way. Mr. Floyd further testified that the Defendant had not been charged with any new
offenses, that she had not violated curfew, that she was paying restitution, and that she had
maintained full-time employment. The State then requested that the court revoke the Defendant's
community corrections sentence and require her to serve her sentence in confinement. The defense
attorney stated that the Defendant "obviously has a drug problem" and requested a period of shock
incarceration and then release again into the community corrections program. After hearing the
evidence, the trial court found that the Defendant had violated the conditions of her community
corrections sentence and revoked that sentence. The Defendant now argues that the revocation was
error.

         The trial court has the discretion to revoke a community corrections sentence upon finding
by a preponderance of the evidence that the defendant has violated the conditions of the agreement;
the trial court may then order the defendant to serve his or her sentence in confinement. State v.
Harkins, 811 S.W.2d 79, 82-83 (Tenn. 1991). However, before a trial court may revoke a
community corrections sentence, the record must contain sufficient evidence to permit the trial court
to make an intelligent and conscientious decision. Id. When revoking a community corrections
sentence, the trial court must place its findings of fact and the reasons for the revocation on the
record. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973).

       The Tennessee Supreme Court has held that an abuse of discretion standard of appellate
review should be used to consider an appeal from the revocation of a community corrections
sentence. Harkins, 811 S.W.2d at 82-83. 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 the defendant violated the
terms of the community corrections program. Id. The proof of a violation of community corrections
need not be established beyond a reasonable doubt, and it is sufficient if it allows the trial judge to
make a conscientious and intelligent decision. Id.; State v. Milton, 673 S.W.2d 555, 557 (Tenn.
Crim. App. 1984).

        If the evidence at the revocation proceeding is insufficient to establish that a violation
occurred, the trial court should dismiss the proceeding. Conversely, if the evidence is sufficient, the
trial court may, within its discretionary authority, revoke the sentence and require the accused to
serve the sentence in confinement. See Tenn. Code Ann. § 40-36-106(e)(3).

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        We conclude that the evidence was sufficient to establish by a preponderance of the evidence
that the Defendant was in violation of the conditions of her community corrections sentence due to
drug use. Mr. Floyd testified that the Defendant had failed a drug screen by testing positive for
cocaine use, and the Defendant did not object or in any way challenge that testimony. In fact, the
Defendant's attorney stated to the court, "Ms. Cumberbatch obviously has a drug problem," thereby
apparently conceding that the Defendant had used drugs. We cannot conclude from this record that
the revocation of community corrections was an abuse of discretion.

         The Defendant, however, argues that the trial court erred by relying on the hearsay testimony
of Mr. Floyd that she had failed a drug screen. She relies on State v. Wade, 863 S.W.2d 406 (Tenn.
1993), in which the admission of a drug screen report was challenged as a violation of the right to
confront and cross-examine witnesses. In Wade, a drug screen report was entered into evidence over
the defendant's objection. Id. at 407. The State did not call the laboratory technician who performed
the test and prepared the report. Id. Both the defendant and his wife testified that the defendant had
not used illegal drugs but that he had been taking Advil, which could have caused false results. Id.
Relying solely on the drug screen report, the trial court revoked the defendant's probation. Id. The
supreme court found that the admission of the report, which was clearly hearsay, violated the
defendant's due process rights because there was no evidence that it was reliable and because the trial
court did not find "good cause" to justify the failure to call the technician and have him or her
available for cross-examination. Id. at 409-10. The court also noted that the validity of the report
was put at issue by the testimony of the defendant and his wife that he had not used illegal drugs.
Id. at 409. It then held that "the State is not entitled to revoke probation based on an unidentified
laboratory test admitted into evidence without a finding of good cause and proof of the reliability
of the test report." Id. at 410; see also State v. Gregory, 946 S.W.2d 829, 831 (Tenn. Crim. App.
1997); State v. Anthen Lee Parker, No. 02C01-9111-CC-00245, 1994 WL 34632, at * 1 (Tenn.
Crim. App., Jackson, Feb. 9, 1994).

         Had the Defendant challenged the results of the drug screen at the revocation hearing, this
issue would be presented in a different light. However, we find Wade to be inapplicable to the facts
of this case. Here, unlike in Wade, the Defendant never objected to the hearsay testimony of Mr.
Floyd. Here, unlike in Wade, the Defendant never put the validity of Mr. Floyd's testimony at issue.
Indeed, the Defendant conceded through her attorney that she had used illegal drugs. As a general
rule, "[w]hen no objection to [hearsay] testimony is interposed, it may properly be considered and
given its natural probative effect as if it were in law admissible." State v. Harrington, 627 S.W.2d
345, 348 (Tenn. 1981). Rule 36(a) of the Tennessee Rules of Appellate Procedure likewise provides:
"Nothing in this rule shall be construed as requiring relief to be granted to a party responsible for an
error or who failed to take whatever action was reasonably available to prevent or nullify the harmful
effect of an error." Failure to make a contemporaneous objection waives consideration by this Court
of the issue on appeal. See id.; State v. Killebrew, 760, S.W.2d 228, 235 (Tenn. Crim. App. 1988).
Thus, the Defendant cannot now complain of the admissibility and reliability of the hearsay
testimony of Mr. Floyd when she did not challenge it below and when she conceded that she had a
problem with drugs. The trial court properly considered the testimony of Mr. Floyd as substantive
evidence that the Defendant failed a drug screen.


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       Accordingly, the judgment of the trial court revoking the Defendant's community corrections
sentence is affirmed.


                                                     ___________________________________
                                                     DAVID H. WELLES, JUDGE




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