            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                                Assigned on Briefs July 10, 2012

                   STATE OF TENNESSEE v. GLEN A. FORREST

                     Appeal from the Circuit Court for Madison County
                          No. 10-366     Donald H. Allen, Judge


                 No. W2011-01961-CCA-R3-CD - Filed November 27, 2012


The defendant, Glen A. Forrest, was convicted of attempted cocaine delivery in violation of
Tennessee Code Annotated section 39-17-417 (2010). The trial court ordered six months of
his sentence to be served in prison and the remaining five years and six months to be served
on probation.1 The trial court subsequently found the defendant to be in violation of the
terms of his probation and revoked the probation, ordering the defendant to serve the original
sentence. The defendant appeals the trial court’s determination that he violated the terms of
his probation. After a thorough review of the record, we conclude that the trial court has
committed no error and affirm the judgment of the trial court.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which A LAN E. G LENN
and C AMILLE R. M CM ULLEN, J J., joined.

David W. Camp, Jackson, Tennessee, for the appellant, Glen A. Forrest.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; James G. Woodall, District Attorney General; and Brian Gilliam, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                                OPINION

        1
          The defendant’s suspended sentence is designated as “Probation,” and not “Community Based
Alternative” on the judgment sheet, but is designated as “Community Corrections” and not “State Probation”
in his guilty plea. The judgment sheet notes he will be supervised by the county Department of Community
Corrections. The judgment of revocation refers to the defendant’s probation, and no new sentencing hearing
was held after revocation. The defendant refers to his sentence as probation, and while we refer to it as such
in this opinion, we note that the standard of review upon revocation is the same for either sentencing
alternative. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
        On September 7, 2010, the defendant pled guilty2 to attempted cocaine delivery, a
Class C felony, in violation of Tennessee Code Annotated section 39-17-417. The defendant
received a six-year sentence, with six months of the sentence to be served incarcerated and
the remaining five years and six months to be served on probation. On July 18, 2011, a
warrant was issued for the defendant’s arrest based on the affidavit of his community
corrections officer, who averred that the defendant had committed the offense of possession
of crack cocaine with intent to sell or deliver, that the defendant had committed the offense
of possession of drug paraphernalia, and that the defendant had failed to report his new
arrest.

       At the hearing, the defendant’s case officer with community corrections testified that
the defendant was required to report any new arrests to her within twenty-four hours.3 The
defendant’s case officer testified that he was arrested on July 8, 2011 and that he never
reported his arrest to her. She testified that up until his arrest, the defendant had passed all
drug tests and complied with the terms of his release. His case worker testified that she had
found out about the arrest a few days after it happened because she had been out of the state
for one week and had not been able to review the arrest reports sooner. She then issued the
warrant for his arrest based on violation of probation. The defendant was arrested on July
21, 2011, when he came to her office for his next scheduled appointment.

        The State also introduced the testimony of Officer Jerod Cobb of the Jackson Police
Department, who testified regarding the defendant’s narcotics-related arrest. Officer Cobb
testified that the police arrested the defendant, his wife, Earlene Forrest, and their son,
Christopher Forrest, at the Lexington Street Grocery based on information obtained from a
confidential informant that the defendant and his wife and son were selling crack cocaine at
that location. He testified that about twenty persons, including patrons of the business, were
present and that several were searched. The defendant was escorted from the kitchen, where
he was working, to a common area. His wife was arrested in the common area and his son
was arrested outdoors. The police then searched the premises and discovered crack cocaine
above the kitchen door frame and in a storage area in the back of the store. They also found


        2
          The record indicates that there were two counts brought against the defendant, one count charging
him with the intent to sell and the other count with the intent to deliver 0.5 grams or more of cocaine, and
that the trial court merged the counts.
        3
         The record contains the defendant's guilty plea, which details the conditions of his probation and
work release. The judgment sheet also contains the details of his probation under “Special Conditions.” The
record does not contain the terms of the defendant’s probation, and neither the plea nor the judgment sheet
shows that the defendant was required to report any arrest or contact with police within twenty-four hours.
The defendant does not, however, argue that these were not terms of his probation.

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drug paraphernalia. In addition, crack cocaine was discovered in Earlene Forrest’s purse, and
hydrocodone pills were found in the possession of Earlene and Christopher Forrest. Officer
Cobb acknowledged that Earlene Forrest was the primary target of the search warrant, that
the cocaine could have belonged to “several people within the store or within the kitchen,”
and that the package was not examined for fingerprints. He testified that no drugs were
found on the defendant’s person and the defendant did not acknowledge any involvement
with the drugs.


        The defendant’s wife, Earlene Forrest, next testified. Ms. Forrest asserted that all of
the drugs recovered belonged to her and that the defendant had nothing to do with them. She
testified she did not work at Lexington Street Grocery, which was owned by her daughter,
but she had been there for two hours on the day of the defendant’s arrest. She averred that
she had placed the drugs above the kitchen doorway and that all of the narcotics found by the
police belonged to her. While Ms. Forrest did not claim the drug paraphernalia, she
explained that the Brillo pads and “roses” were items stocked by all stores in Jackson and
while she was aware they could be used to smoke drugs, they were not crack pipes.

        The trial court found that the defendant had violated his probation by possessing crack
cocaine with the intent to sell it, by possessing drug paraphernalia, and by failing to report
his arrest. The court revoked the defendant’s probation on August 30, 2011, and the
defendant filed a timely notice of appeal. On appeal, the defendant argues that the trial court
abused its discretion in finding that the defendant had violated the terms of his probation by
possessing crack cocaine, since Ms. Forrest’s testimony established that the crack belonged
to her. The defendant also contends that he did not violate the terms of his probation by
failing to report the arrest, since his probation officer was out of town for a week at the time
of his arrest. The defendant asserts that his revocation is inconsistent with the disposition
of his son’s probation violation because his son’s probation was revoked and reinstated.

                                           Analysis

        The trial court retains the power to revoke a suspended sentence. T.C.A. § 40-35-310.
Thus, the defendant is subject to arrest if the trial court becomes aware that the defendant has
breached the laws of Tennessee or has violated the terms of his probation. T.C.A. §
40-35-311(a). The trial court must hold a hearing to determine whether there has been a
violation, and if the court finds that the defendant has violated the conditions of probation,
it may revoke the suspension of the sentence and may reinstate the original judgment. T.C.A.
§ 40-35-311(b), (e). The violation need not be proven beyond a reasonable doubt, but it must
be shown by a preponderance of the evidence. T.C.A. § 40-35-311(e); State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001). An appellate court will not overturn the revocation unless

                                              -3-
it concludes that the trial court committed an abuse of discretion. Id.; State v. Reams, 265
S.W.3d 423, 430 (Tenn. Crim. App. 2007). An abuse of discretion occurs when the appellate
court finds no substantial evidence to support the conclusion of the trial judge that a violation
of the conditions of probation has occurred. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991); see also State v. Farrar, 355 S.W.3d 582, 586, 589 (Tenn. Crim. App. 2011), perm.
App. Denied (Tenn. Oct. 18, 2011) (questioning the validity of the “no substantial evidence”
formulation, but nevertheless applying it).

        The testimony of the defendant’s case officer was that the defendant was required to
report any arrests or any contact with law enforcement within twenty-four hours. She also
testified that the defendant never reported his arrest between its occurrence on July 8, 2011
and his arrest for violation of probation on July 21, 2011. The defendant’s attempt to blame
his case officer’s absence at the time of his arrest is unavailing because there is no evidence
that her absence in any way interfered with his ability to report the arrest. There is no
evidence that the defendant made any effort to report his arrest at any point in time.

       Although Ms. Forrest testified that all the drugs – including those that remained in
her purse and those that she testified she put above the doorway and into the storage room
during her two-hour tenure – were hers, the trial court, which is charged with making
credibility determinations, implicitly did not find her a credible witness. Other evidence at
the hearing established that a confidential informant who had made numerous purchases from
the Lexington Street Grocery implicated the defendant in the sale of crack cocaine at that
address and that the defendant was in close vicinity to the drugs found above the kitchen
doorway. We conclude there is not an absence of substantial evidence supporting the trial
court’s findings. Neither is there any inconsistency with the disposition of the defendant’s
son’s case, particularly as there was no allegation the defendant’s son failed to report his
arrest. We conclude that the trial court did not abuse its discretion in finding by a
preponderance of the evidence that the defendant violated his probation.

                                       CONCLUSION


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


                                                     _________________________________
                                                     JOHN EVERETT WILLIAMS, JUDGE




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