        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs on April 26, 2011

            STATE OF TENNESSEE v. MARK EDWARD COFFEY

           Direct Appeal from the Criminal Court for Washington County
                          No. 31527C    R. J. Beck, Judge




               No. E2010-01486-CCA-R3-CD - Filed November 1, 2011


Pursuant to a negotiated plea agreement, Defendant, Mark Edward Coffey, pled guilty to
facilitation of second degree murder. Defendant was sentenced as a Range I standard
offender to eight years, suspended and placed on probation. Defendant was charged with a
violation of probation, and after a hearing, the trial court revoked his probation and ordered
him to serve his original sentence in confinement. Defendant appeals. Finding no error, we
affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS, J., joined. D AVID H. W ELLES, S P.J., not participating.

C. Brad Sproles, Kingsport, Tennessee, for the appellant, Mark Edward Coffey.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; H. Greeler Wells, District Attorney General; and Joseph Eugene Perrin, Assistant
District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

Facts

       On November 22, 2005, pursuant to a negotiated plea agreement, Defendant pled
guilty to facilitation of second degree murder and was sentenced to eight years to be
suspended on probation. On December 11, 2009, a probation violation warrant was issued,
alleging that Defendant had violated the conditions of his probation by: 1) committing the
new offenses of public intoxication, disorderly conduct, and resisting arrest; 2) drinking
alcohol to excess; and 3) behaving in an assaultive and threatening manner.

       At a hearing on June 3, 2010, Officer Andy Hodges of the Johnson City Police
Department testified that on December 8, 2009, he responded to a call to Defendant’s
residence. When he arrived, he observed Defendant outside of his house. Defendant’s face
was bleeding, and he appeared intoxicated. Defendant’s speech was slurred and he was
having trouble maintaining his balance. Defendant was loud and uncooperative. Officer
Hodges testified that “[i]t was very apparent [that Defendant was intoxicated]. He was
incredibly inebriated.” Defendant was “very unstable,” and Officer Hodges asked him to sit
on the stoop. Defendant fell over while sitting down. Officer Hodges tried to calm
Defendant down and asked him questions to discern how his injuries had occurred.
Defendant was angry and aggressive towards Officer Hodges. Defendant grabbed at Officer
Bishop, and Officer Hodges placed Defendant under arrest for public intoxication and
disorderly conduct. After Officer Hodges put Defendant into the backseat of his patrol car,
Defendant began spitting and kicking inside the car. Officer Hodges transported Defendant
to Northside Hospital, where Defendant was “very belligerent” with hospital staff.
Defendant had to be physically restrained for treatment of his injuries.

       Defendant’s brother George Coffey testified that he was sleeping at Defendant’s
residence on the night of Defendant’s arrest. He was awakened by “the commotion and
ruckus” of an altercation between Defendant and their younger brother. Defendant’s nose
was bleeding from having been hit with something in the face by his brother’s girlfriend,
Shelley. Mr. Coffey testified that when Officers Bishop and Hodges arrived, he and
Defendant were on the front porch. Defendant was “intoxicated” and “loud.” Mr. Coffey
saw Defendant fall over while sitting on the porch. He testified that Officer Hodges spoke
to Defendant in a “forceful” and “demanding” manner. Defendant stated that his nose hurt,
and he hit his own Jeep. After EMS arrived, Defendant refused to walk to the sidewalk or
go to the hospital. Mr. Coffey offered to take Defendant to the hospital. Mr. Coffey went
inside to get a shirt, but when he came back outside, he saw Defendant already inside the
officer’s patrol car.

         Steve Whittaker, Defendant’s cousin, testified that he was at Defendant’s residence
on the night of the incident. He was sitting in his car in front of the house when George
Coffey went inside to get a shirt. He saw the paramedics check on Defendant, and Defendant
refused to go to the hospital. He saw Defendant stand up, and the officers put handcuffs on
him. He testified that Defendant was calm and cooperative. On cross-examination, Mr.
Whittaker testified that he heard Defendant yell, but it was not very loud. He testified that
“there was [sic] sometimes when he got a little bit irate and they had asked him to calm down
a little bit.” He also testified that Defendant was intoxicated.

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       The trial court ruled that the State established by a preponderance of the evidence that
Defendant violated the terms and conditions of his probation in that he committed the offense
of public intoxication. The court stated:

        There is no doubt before this Court the Defendant was guilty of public
        intoxication when the police arrived at the scene of the altercation. . . . [and]
        [t]hat Defendant presented both a danger to himself or a danger to others.
        There’s really not much dispute about that from anybody that – witnesses
        from either side.

        The trial court also found that “[c]learly the Defendant was under the influence of
alcohol to an excessive amount” and that he had resisted arrest, in violation of the terms and
conditions of his probation. The court found, however, that the evidence was insufficient as
to the charge against Defendant of disorderly conduct.

Sentencing

       Sandy Rawles, Defendant’s probation officer, testified that she began supervising
Defendant’s probation in July, 2009, following his release from incarceration for a prior DUI
conviction. Defendant was on “maximum supervision” due to his criminal history.
Defendant had been reporting as ordered, providing proof of employment, and making
payments toward his probation fees. Defendant admitted to Ms. Rawles that he had an
alcohol problem. Ms. Rawles recommended to the court that, in the event Defendant was
released back into the community, he be ordered to complete an inpatient drug and alcohol
treatment program. She testified that Defendant had an extensive criminal history and a
history of violating probation and that he had completed a Residential Substance Abuse
Treatment (RSAT) program while at the Washington County Detention Center in 1999.

       The trial court found that Defendant had “an extensive prior record, both
misdemeanor and felony.” The court further found that Defendant had “not been successful
in regards to the overall treatments he’s received at the hands of the Court.” The trial court
ordered Defendant to serve his sentence.

Analysis

        Defendant asserts that the evidence does not support the trial court’s decision to
revoke his probation. As we understand Defendant’s argument, Defendant asserts that the
trial court abused its discretion in finding that Defendant violated probation because 1) the
trial court found insufficient evidence that Defendant committed the offense of disorderly
conduct; 2) there was insufficient evidence that Defendant resisted arrest in that the officer

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testified that Defendant’s hostile and aggressive conduct occurred after Defendant was
already in custody; and 3) while the evidence established that Defendant was intoxicated, it
was an abuse of discretion for the trial court not to consider whether that alone would justify
a revocation.

        A trial judge is vested with the discretionary authority to revoke probation if a
preponderance of the evidence establishes that a defendant violated the conditions of his or
her probation. See Tenn. Code Ann. §§ 40-35-310, -311(e); State v. Shaffer, 45 S.W.3d 553,
554 (Tenn. 2001). “The proof of a probation violation need not be established beyond a
reasonable doubt, but it is sufficient if it allows the trial judge to make a conscientious and
intelligent judgment.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

       When a probation revocation is challenged, the appellate courts have a limited scope
of review. This Court will not overturn a trial court’s revocation of a defendant’s probation
absent an abuse of discretion. See Shaffer, 45 S.W.3d at 554. For an appellate court to be
warranted in finding that a trial judge abused his or her discretion by revoking probation,
“there must be no substantial evidence to support the conclusion of the trial court that a
violation of the conditions of probation has occurred.” Id.

        The trial court found that Defendant violated his probation by committing new
offenses and by drinking alcohol excessively and credited Officer Hodges’ testimony.
Officer Hodges testified that Defendant was obviously intoxicated, that he had slurred
speech, and that he was unsteady on his feet. Defendant was also yelling and uncooperative
with the officers and paramedics. Defendant was aggressive and hostile. He struck a vehicle
with his fist and was kicking and spitting inside the officer’s vehicle. The other witnesses
also testified that Defendant was intoxicated. We conclude that the record supports the trial
court’s findings.

         Defendant further asserts that the trial court abused its discretion by not considering
“options available for treatment.” At the conclusion of the hearing, the trial court stated, “I
understand the Court’s required to consider other – things other – alternatives to
incarceration. But looking at . . . the original presentence report, the history of this case, and
all the evidence that’s been presented, Defendant will just be required to serve his sentence.”

        Tenn. Code Ann. § 40-35-310 authorizes a trial court to revoke the suspension of a
defendant’s sentence and “order the original judgment so rendered to be in full force an
effect from the date of the revocation of suspension, . . . .” The statute further provides as
follows:




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        (b) In addition to the power to restore the original judgment when
        suspension of sentence is revoked, the trial judge may also resentence the
        defendant for the remainder of the unexpired term to any community-based
        alternative to incarceration authorized by chapter 36 of this title; provided,
        that the violation of the defendant’s suspension of sentence is a technical
        one and does not involve the commission of a new offense.

Tenn. Code Ann. § 40-35-310(b).

        The proof at the hearing supports the trial court’s findings that Defendant committed
new offenses in violation of the conditions of his probation. Based on the evidence, as well
as Defendant’s prior criminal history, we conclude that the trial court was within its
discretion by sentencing Defendant to serve his original sentence. Defendant is not entitled
to relief.

                                      CONCLUSION

       The judgment of the trial court is affirmed.

                                                   _________________________________
                                                   THOMAS T. WOODALL, JUDGE




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