         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                              Assigned on Briefs March 9, 2005

         STATE OF TENNESSEE v. GLORIA M. PATTON STOVALL

                  Direct Appeal from the Circuit Court for Franklin County
                         Nos. 15340, 15658   Buddy D. Perry, Judge



                      No. M2004-01401-CCA-R3-CD - Filed May 24, 2005


The defendant appeals the trial court’s revocation of her probation based upon a new law violation,
to wit: introduction of contraband into a penal facility. Specifically, she contends that: (1) no proof
was presented that Soma is a controlled substance or legend drug; (2) the trial court improperly took
judicial notice that Soma is a controlled substance; (3) no proof was presented of unlawful intent;
and (4) the revocation order does not properly state the evidence relied upon and reason for revoking
probation. Upon our review, we conclude that there was substantial evidence to support the finding
of a new law violation; we affirm the judgments of the trial court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and
NORMA MCGEE OGLE, JJ., joined.

Philip A. Condra, District Public Defender, and David O. McGovern, Assistant Public Defender,
for the appellant, Gloria M. Patton Stovall.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
James Michael Taylor, District Attorney General; and William B. Copeland, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                                  Facts and Procedural History

       The defendant, Gloria M. Patton Stovall, pled guilty to one count of DUI first offense (Case
# 15340) and one count of attempt to introduce contraband into a penal institution (Case # 15658).
For DUI first offense, the defendant received a sentence of eleven months and twenty-nine days, all
suspended except forty-five days. On the remaining charge, she was sentenced to two years and six
months, with service of the first forty-five days in jail and the remainder on probation. The sentences
were run concurrently.
        On February 26, 2004, a probation violation report was issued, alleging a new law violation
(introduction of contraband into a penal facility) and a violation of probation rule seven (possession
of a Schedule IV controlled substance). Following a hearing two days later, the trial court revoked
the defendant’s probation because of the new law violation and reinstated the original sentences.

        At the revocation hearing, Emily Faris testified that she was employed as a correctional
officer with the Franklin County Sheriff’s Department on February 2, 2004. On that day, the
defendant came to the jail to begin service of forty-five days incarceration as part of her sentence for
the aforementioned convictions. As the defendant was awaiting booking, two officers advised Faris
that the defendant was “drinking cough syrup.” At Faris’ request, the defendant approached to be
booked and placed a bag of personal items on the counter. As Faris spoke with the defendant in an
attempt to ascertain her condition, the defendant’s “hand rolled open and [two] pills rolled out on
to the counter.”
        Faris stated that the defendant then:
        snatched [the pills] back and [I] told her to put them back on the counter, and she wouldn’t.
        So I walked over to her and asked her to place them back on the counter and she still
        wouldn’t put them back. She went to put them to her mouth like she was going to take them,
        so I advised her that she needed to put the pills back on the counter, so she finally laid them
        back on the counter.
On cross-examination, Faris acknowledged that, although the pills had been sent to the lab, no results
identifying the substance were available at the time of the hearing. She further stated the defendant
told her that the pills were a prescription medication called Soma. Finally, she acknowledged that
the whole encounter “probably” lasted three to five seconds and that the defendant ultimately
complied with her request and placed the pills back on the counter.

        Mike St. John testified that he was also a correctional officer with the Franklin County
Sheriff’s Department. He stated that it is departmental policy to record individuals who come into
the jail when advance notice is given that they are “unruly.” He further stated that, when he
supervised the third shift, it was his policy to record the booking of all female inmates because only
male officers were working at that time. He testified that the camera was located in central control
and that it was impossible to turn the camera on from behind the counter. On cross-examination,
St. John acknowledged that, according to his policy, there would be no reason to turn the camera on
if a female employee was on duty.

        As the final witness at the hearing, the defendant testified that Dr. Alano prescribed her
Vioxx, Effexor, Xanax, and Soma. She further stated that she suffered from “deteriorating
rheumatoid arthritis and deteriorating cartilage and several other things.” When asked about the
incident with Faris, the defendant stated, “[I] knew then that if I laid them out there and I didn’t
bring my prescription in with me, that I was going to get in trouble, so that’s the reason why I
hesitated.” She also stated that she laid the pills down after “the second time [Faris] asked, not three
or four.” Finally, she reiterated that she had a prescription for the pills that were confiscated.



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        On cross-examination, the defendant acknowledged that she dropped two Soma pills onto
the counter at the jail. When asked if the prescription called for her to take two pills at the same
time, the defendant responded, “Yes. Well, he told me to go ahead and take – if I’m hurting real bad
either go ahead and take it with the Darvocet or 800 milligram Ibuprofen or take two.” The
defendant also acknowledged that she was aware of the rules regarding drugs in jail and that she
previously pled to and was convicted of attempting to introduce contraband into the jail.

       At the conclusion of the hearing, the court found that:
       [I]t’s a clear case, and I’m not making any decision on the cough medicine, I’m not
       weighing that either way, I think she intended to take those pills into the jail with her.
       I think she knew exactly what she was doing there. I revoke her probation to serve
       her sentence. She’s in the custody of the Sheriff.
The defendant now appeals to this court, contending that the trial court erred in revoking her
probation.

                                              Analysis

        A trial court may revoke probation and order the imposition of the original sentence upon a
finding by a preponderance of the evidence that the person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, -311. The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Revocation of probation and a community corrections sentence is subject to an abuse of discretion
standard of review, rather than a de novo standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn.
1991). Discretion is abused only if the record contains no substantial evidence to support the
conclusion of the trial court that a violation of probation or community correction sentence has
occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997). Proof of a violation
need not be established beyond a reasonable doubt, and the evidence need only show that the trial
judge exercised a conscientious and intelligent judgment, rather than acted arbitrarily. Gregory, 946
S.W.2d at 832; State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995).

         The defendant first contends that no evidence was presented indicating that Soma is a legend
drug or controlled substance and that the trial court improperly took judicial notice that it was a
controlled substance. Initially, we turn to the offense that is the basis of the new law violation and
that is codified at Tennessee Code Annotated section 39-16-201 and states:
         Introduction or possession of weapons, explosives, intoxicants or drugs into a penal
         institution where prisoners are quartered
         (a)      it is unlawful for any person to:
                  (1)      Knowingly and with unlawful intent take, send or otherwise cause to
                           be taken into any penal institution where prisoners are quartered or
                           under custodial supervision any weapons, ammunition, explosives,
                           intoxicants, legend drugs, or any controlled substances found in
                           chapter 17, part 4 of this title.



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                  (2)    Knowingly possess any of the materials prohibited in subdivision
                         (a)(1) while present in any penal institution where prisoners are
                         quartered or under custodial supervision without the express written
                         consent of the chief administrator of the institution.
         (b)      A violation of this section is a Class C felony.

        We first note that the pertinent statute encompasses both legend drugs and controlled
substances; therefore, if the drug fits in either category, it is sufficient to sustain a violation.
Furthermore, contrary to the defendant’s argument, the record does not reflect that the trial court
classified the pills as controlled substances or took judicial notice that they were controlled
substances. Rather, at the end of the hearing, the trial court noted generally that “[the defendant]
intended to take those two pills into the jail with her. I think she knew exactly what she was doing
there.” Moreover, the revocation order states that the basis for revocation was “new criminal
conduct; to wit: introducing contraband into jail.” Therefore, the defendant’s argument that the trial
court based revocation on possession and introduction of a controlled substance appears to be
misplaced.

        Instead, the pills would be classified as a legend drug. A legend drug is defined as “any item
which federal law prohibits dispensing without a prescription from a licensed doctor, dentist,
optometrist or veterinarian.”1 Tenn. Code Ann. § 53-10-101(a) (2004). The trial court could sustain
the violation upon proof that the defendant knowingly and unlawfully possessed the prescription
drug Soma in a penal facility.

         While there were no definitive laboratory reports available at the hearing, the record reflects
substantial evidence that the pills possessed by the defendant were Soma. At the hearing, Faris
testified that the defendant told her that the pills were Soma. The defendant corroborated Faris’
testimony when she took the stand and admitted that the pills that fell on the counter were Soma and
that she received a prescription for them. We conclude that the trial court implicitly found the drug
to be within a class prohibited by the statute, based upon the admission by the defendant, and
properly ruled that the defendant committed a new law violation.

        The defendant also avers that there was no proof presented to support unlawful intent;
however, we are not persuaded by this argument. The transcript of the revocation hearing reflects
that the pills fell from the defendant’s hands, that she “snatched them back,” and that she twice
refused to put them back on the counter. Further, the defendant stated: “[I] knew then that if I laid
them out there and I didn’t bring my prescription in with me, that I was going to get in trouble, so
that’s the reason why I hesitated.” Finally, she acknowledged that she was aware of the rules
regarding drugs in the jail when she brought the pills into the facility. Therefore, we conclude that
ample evidence was presented to prove that the defendant knowingly and unlawfully took the legend
drug Soma into a penal institution.


         1
           Although this definition is provided in a different part of the Code than that in which our violation statute is
found, we conclude that the definition is certainly applicable in this context.

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        Finally, the defendant avers that the trial court did not properly state the evidence relied upon
and the reasons for revoking probation. Probationers are guaranteed various procedural due process
rights prior to revocation, including “‘a written statement by the factfinders as to the evidence relied
on and reasons for revoking [probation].’” Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756,
1762 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S. Ct. 2593, 2604 (1972)).
However, this Court has previously noted “that ‘the majority of courts that have addressed this issue
adopt the view that the transcript may substitute for the written statement if the record includes the
evidence relied upon and the reasons for the revocation.’” State v. Leiderman, 86 S.W.3d 584, 590
(Tenn. Crim. App. 2002) (quoting Mihal Nahari, Note, Due Process and Probation Revocation: The
Written Statement Requirement, 56 Fordham L. Rev. 759, 772 (1988)).

         In the present case, the revocation order indicated that the basis for revocation was “new
criminal conduct; to wit: introducing contraband into jail.” Further, after hearing the proof at the
revocation hearing, the trial court opined, “I think she intended to take those two pills into the jail
with her. I think she knew exactly what she was doing there. I revoke her probation to serve her
sentence.” Upon review of both the transcript and the order, we conclude that the requirement of
a written statement is met. The trial court explicitly stated the grounds for revocation in the order,
the reasoning was explained at the conclusion of the hearing, and the record contained the testimony
the trial court relied upon in reaching its decision. Therefore, the defendant’s due process rights
were not violated.

                                              Conclusion

        We affirm the revocation of the defendant’s probation.




                                                        ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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