        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs March 8, 2011

              STATE OF TENNESSEE v. EMANUEL HAMILTON

                 Appeal from the Davidson County Criminal Court
            Nos. 2004-B-1778, 2007-B-1486 Cheryl A. Blackburn, Judge


                 No. M2010-00432-CCA-R3-CD - Filed May 25, 2011


The Defendant, Emanuel Hamilton, appeals the Davidson County Criminal Court’s order
revoking his probation for possession with the intent to deliver one-half gram or more of
cocaine, a Class B felony, and sale of less than one-half gram of cocaine, a Class C felony,
and ordering the remainder of his effective eleven-year sentence to be served in confinement.
He contends that he should have been returned to probation. We affirm the judgment of the
trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and N ORMA M CG EE O GLE, JJ., joined.

Michael Colavecchio, Nashville, Tennessee, for the appellant, Emanuel Hamilton.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia Lee, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Jeff Burks and Stacey
Smith, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                        OPINION

       In Davidson County Criminal Court Division III case 2004-B-1778, the Defendant
pled guilty on February 3, 2005, to possession with the intent to deliver one-half gram or
more of cocaine, occurring on March 9, 2004. See T.C.A. § 39-17-417(a)(4), (c)(1) (2010).
He received an eight-year sentence to be served on probation. On July 13, 2005, he violated
the terms of his probation, and he served thirty days in jail, and was returned to probation.
He again violated the terms of his probation, and on April 11, 2007, he was ordered to serve
the sentence and was released after serving part of his sentence in a boot camp program.
        In Division I case 2007-B-1486, the Defendant pled guilty on January 4, 2008, to sale
of less than one-half gram of cocaine, occurring on January 31, 2007. See T.C.A. § 39-17-
417(a)(3), (c)(2). He received a three-year sentence to be served consecutively to the
sentence in case 2004-B-1778. After he was released from the boot camp program, he was
arrested on July 11, 2009, for aggravated criminal trespass. He was sentenced to serve nine
days for the offense. The arrest took place at 3:46 a.m., past the Defendant’s 6:00 p.m.
curfew.

       The trial court signed a revocation warrant for both cases on July 17, 2009. The
warrant signed by the Defendant’s probation officer alleged violations of probation based
upon the aggravated criminal trespass conviction and the curfew violation.

        At the revocation hearing, the Defendant conceded through counsel that he was
arrested, pled guilty, and was sentenced to nine days for the trespass conviction. Defense
counsel acknowledged that the Defendant knew he was on a list that prohibited him from
going back to the same public housing project where he was previously arrested. Through
counsel, the Defendant conceded that he was out past his curfew. The only matter at issue
at the hearing was whether the Defendant would serve his sentence or be allowed to remain
on probation.

        Juanita Shaw, the Defendant’s probation officer, testified that the Defendant was
released from boot camp in early June 2009 and that he reported to her weekly as required
by his intensive probation program. She said he never brought her any proof that he sought
employment. She said he called her around June 13, either from the jail or after he was
released from the jail, and reported the trespassing arrest. She said that when the Defendant
reported for his next probation appointment, she told him she would pursue a violation
warrant.

       Janikka Anderson, the Defendant’s girlfriend of approximately ten months, testified
that she was with the Defendant when he was arrested on July 11, 2009. She said she visited
the Defendant at his mother’s house on July 10 until 9:00 or 10:00 p.m., when she left with
the Defendant’s seven-year-old son. She said the boy wanted to spend the night with her
children at her apartment. She said she lived on Metropolitan Development and Housing
Authority (MDHA) property.

        Ms. Anderson testified that the Defendant’s son became ill with a high fever at her
house, that she returned to the Defendant’s mother’s house to get the Defendant, and that she
went with the two of them to the emergency room. She said the Defendant accompanied her
to the hospital because a parent had to be present for the child to receive treatment.



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        Ms. Anderson testified that they left the emergency room in the early morning hours
of July 11 and that she went to her house, which was between the hospital and the
Defendant’s mother’s house, to drop off the child first. She said a uniformed police officer
was parked on the corner in a patrol car. She said that they were close enough for the officer
to see them but that he did not immediately approach them. She said that the Defendant had
to go to her back door because the front door was locked and that by the time she walked to
the back of the building, the officer had approached the Defendant at her back door. She
said that the officer asked her if she was “vouching for” the Defendant and that she told the
officer she lived there and the Defendant was her guest. She said that the Defendant
provided his identification to the officer as requested and that after the officer verified that
the Defendant did not have any outstanding warrants, the officer arrested him because he was
on the MDHA’s “banned list.” She said that she had only lived on MDHA property for a few
months and that she had never heard of the banned list. She said she and the Defendant were
unaware he was on the list.

       Ms. Anderson identified the Defendant’s certificate for completing a job readiness
class. She said she took the Defendant to and from the class, which met weekly. She said
the Defendant took forklift driving classes and that the agency sponsoring the job readiness
program was going to pay for classes and the $100 fee for the Defendant to obtain a forklift
operator’s license.

       The trial court expressed its desire to hear the testimony of the arresting officer. The
court continued the hearing in order for the arresting officer to be subpoenaed. At a later
hearing, Metro Police Officer Mike Buchanan testified that he was in the MDHA’s Edgehill
housing project in the early morning hours of July 11, 2009. He said that another officer
approached the Defendant and that he came as back-up. He said the Defendant told them he
did not live on the property. Officer Buchanan said that he asked the Defendant why he was
on the premises and that the Defendant responded by explaining that his girlfriend lived
there. He said the Defendant never mentioned an emergency.

       On cross-examination, Officer Buchanan identified the officer who made initial
contact with the Defendant as Officer Howard or Officer Lures. He said he did not see a
child anywhere. He said that when he encountered the Defendant, the Defendant was
standing beside a patrol car. He said he was unaware of another car associated with the
Defendant on the property.

        Officer Buchanan testified that a person would be placed on the banned list after being
involved in criminal activity and being asked to stay off the property. He said he did not
know why the Defendant was on the list. He said that the police department maintained the
list and that officers received an updated list periodically.

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        The defense requested additional time to subpoena the officer who first talked to the
Defendant. The court granted the request. At a later hearing, Officer Darryl Howard
testified that he was on duty on July 11, 2009, when he encountered the Defendant at
MDHA’s Edgehill property. He said the police were sweeping MDHA properties for
trespassers and curfew violations that evening. He said there was a high level of drug
trafficking in the area. He said they checked anyone who stood on a porch or on the grass.
He said that it was “tough” to be placed on the banned list and that anyone they identified
during the sweeps as being on the list was taken to jail for trespassing.

       Officer Howard testified that he saw the Defendant loitering on a grassy spot around
a porch. He could not recall specifically where he saw the Defendant. He said the procedure
that evening was to approach an individual, request the person’s identification, and compare
the identification to the banned list. He said the Defendant was on the banned list.

        On cross-examination, Officer Howard testified that the Defendant was not near a car
with a young child inside. He said he did not recall the Defendant mentioning that he had
been to the hospital with a child and was only there to take the child’s mother home. He said
that the officers tried to build a rapport with the residents and that had the Defendant
mentioned a child or a medical emergency, the officers would have dealt with the situation
rather than arresting the Defendant. He said that the Defendant was not in a car and that this
was not a situation where the Defendant pulled up in a car to drop someone off and kept
moving. He said the Defendant was alone when he approached him. He said someone else
might have come outside once they made contact with the Defendant.

        The Defendant did not testify. Defense counsel argued that the Defendant’s
three-month confinement since his arrest for the violation warrant was a sufficient
punishment and that the Defendant should be returned to probation. The trial court
accredited the officers’ testimony that the Defendant never mentioned a child or a medical
emergency. The court found that the State established by a preponderance of the evidence
that the Defendant violated his probation by committing a new offense and being out past his
curfew. Based upon the Defendant’s past failures to abide by the terms of probation and his
history of additional criminal activity while on probation, the court found that the
Defendant’s sentence should be placed into effect.

      On appeal, the Defendant argues that the trial court erred in revoking his probation.
The State argues that the trial court did not abuse its discretion. We agree with the State.

      A trial court may revoke probation upon its finding by a preponderance of the
evidence that a violation of the conditions of probation has occurred. T.C.A. § 40-35-311(e)
(2010). “In probation revocation hearings, the credibility of witnesses is to be determined

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by the trial judge.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991) (citing
Carver v. State, 570 S.W.2d 872 (Tenn. Crim. App. 1978)). If a trial court revokes a
defendant’s probation, its options include ordering confinement, ordering the sentence into
execution as originally entered, returning the defendant to probation on modified conditions
as appropriate, or extending the defendant’s probation by up to two years. T.C.A. §§ 40-35-
308(a), (c); -310 (2010); see State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999). The judgment
of the trial court in a revocation proceeding will not be disturbed on appeal unless it appears
that there has been an abuse of discretion. See State v. Williamson, 619 S.W.2d 145, 146
(Tenn. Crim. App. 1981).

        The Defendant acknowledges that he was convicted of especially aggravated
trespassing. He maintains, however, that he should be given another opportunity on
probation. The record contains sufficient proof that the Defendant violated the conditions
of his probation by being out past his 6:00 p.m. curfew and trespassing on MDHA property
after he was prohibited from returning. Although the Defendant’s girlfriend testified that the
Defendant was only on MDHA property due to his child’s medical emergency, Officers
Howard and Buchanan testified that the Defendant mentioned nothing about a child’s
medical emergency. Instead, the Defendant mentioned only that his girlfriend lived on the
premises. Officer Howard said that the Defendant was loitering outside, that he was not near
a car containing a child, and that no one was with the Defendant when he approached him.
Officer Howard said that had the Defendant mentioned a medical emergency, they would
have dealt with the situation and would not have arrested the Defendant. These facts and the
Defendant’s failures at past probation opportunities were sufficient proof to support the
court’s finding that the Defendant violated his probation and revoking his probation.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                               ____________________________________
                                               JOSEPH M. TIPTON, PRESIDING JUDGE




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