                                                                                         12/21/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs October 11, 2017


          STATE OF TENNESSEE v. AARON JERMAINE CLARK

              Appeal from the Criminal Court for Hamilton County
    No. 275083, 294282, 294436, 294660, 294663 Thomas C. Greenholtz, Judge

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                           No. E2017-00616-CCA-R3-CD
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Aaron Jermaine Clark (“the Defendant”) appeals the trial court’s revocation of his
probation and imposition of his sentences, claiming that he should have been granted an
alternative sentence so that he could continue his course of drug rehabilitation. After a
review of the record and applicable law, we conclude that the trial court did not abuse its
discretion. The judgment of the trial court is affirmed.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Fisher Wise, Chattanooga, Tennessee, for the appellant, Aaron Jermaine Clark.

Herbert H. Slatery III, Attorney General and Reporter; Linda D. Kirklen, Assistant
Attorney General; Neal Pinkston, District Attorney General; and AnCharlene Davis,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

       On October 7, 2010, the Defendant pled guilty in case number 275083 to sale of
cocaine, a Class B felony. The trial court imposed an eight-year suspended sentence to
be served consecutively to a five-year sentence for theft of property in case number
267845. After service of the five-year sentence in case number 267845 and while on
probation in case number 275083, the Defendant pled guilty and was sentenced to an
effective seven-year term to be served consecutively to the eight-year sentence in case
number 275083. That sentence was suspended, but the trial court ordered the Defendant
to serve eleven months and twenty-nine days in the county jail for violating probation in
case number 275083. Following the issuance of a probation violation warrant and an
evidentiary hearing on January 27, 2017, the trial court revoked the Defendant’s
probation and ordered the sentences to be served in confinement.

      At the probation revocation hearing, the Defendant’s probation officer, James
Rox, testified that on November 18, 2013, the Defendant graduated from the Hamilton
County Drug Court at the end of his five-year sentence in case 267845. However, the
Defendant failed to report to the probation office at the beginning of his consecutive
sentence for case 275083, so on April 4, 2014, Officer Rox filed a Probation Violation
Report alleging that the Defendant had absconded.1 The trial court issued a capias, and
the Defendant was arrested. On May 12, 2014, the warrant was dismissed, and the
Defendant was restored to probation.

       On November 7, 2014, Officer Rox filed another Probation Violation Report
alleging that the Defendant had been arrested for possession of cocaine, had failed to
notify his probation officer of his arrest, had failed to report as required, had used drugs,
and had failed to pay probation fees. On December 2, 2014, a capias was issued, and the
Defendant was arrested on December 16, 2014.

       On February 25, 2015, the Hamilton County Grand Jury indicted the Defendant in
case 294282 for a Class C felony aggravated burglary and Class E felony theft of
property. The indictment listed the offense date as November 28, 2014. On March 11,
2015, the Hamilton County Grand Jury indicted the Defendant in case 294436 for a Class
C felony aggravated burglary and Class D felony theft of property. The indictment listed
the offense date as December 11, 2014. On March 25, 2015, the Hamilton County Grand
Jury indicted the Defendant in case 294660 for a Class C felony aggravated burglary and
in case 294663 for possession of cocaine. Both indictments listed the offense date as
December 16, 2014.

       On October 15, 2015, the Defendant pled guilty to the six felony charges listed
above and to violating the terms of his probation. Pursuant to a plea agreement, the
Defendant received an effective seven-year sentence to run consecutively to his eight-
year sentence in case 275083, his probation was revoked in case 275083, he was ordered
to serve eleven months and twenty-nine day in jail on the revocation, and the balance of
his sentence was ordered to be served on supervised probation with an alcohol and drug
assessment.
       1
          The probation warrant also stated that the Defendant was on probation in Bradley County.
Officer Rox testified that on May 7, 2012, the Defendant was convicted in Bradley County for the sale of
cocaine and received a ten-year sentence that was ordered to be served consecutively to the eight-year
sentence in case 275083.
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       Officer Rox further testified that, after the Defendant was returned to probation, he
performed according to the terms of his probation for a short time, reported as ordered,
and worked steadily at his job. As a condition of his probation, the Defendant was
assigned to the intensive outpatient program for drug addiction treatment at the Council
for Alcohol & Drug Abuse Services (“CADAS”).

       On May 12, 2016, the Defendant was suspended from an intensive outpatient
treatment program because he allegedly tested positive for cocaine and fraudulently
attempted to pass his drug screen by using a “Whizzinator” device.2 On May 26, 2016,
Officer Rox filed a Probation Violation Report alleging that the Defendant had violated
probation by failing a drug screen, by attempting to fraudulently pass a drug screen, and
by failing to pay court-ordered restitution and probation fees. Based on Officer Rox’s
Probation Violation Report, the trial court issued a capias for the Defendant’s arrest on
June 6, 2016. The Defendant was arrested on June 14, 2016.

       Mary Kay Roberts, the director of court services at CADAS, testified that, if the
court allowed it, CADAS would accept the Defendant back into their program on an
inpatient basis. This assurance of acceptance was based on a self-reported assessment
that the Defendant had taken a few days prior to the hearing at the request of the
Defendant’s attorney.

       Jerome Lyle, the Defendant’s employer, testified that the Defendant had worked
for his construction company, Future Construction, since 2012. Mr. Lyle stated that the
Defendant was a good worker and was proficient both in small electrical work and in the
highly-valued skill of excavator operation. Mr. Lyle also testified that the Defendant got
along well with the other workers and that he had never exhibited bad behavior on the job
or shown up to work intoxicated. Mr. Lyle stated that he would re-hire the Defendant if
he was released on probation.

       Billy Joe Keltch, the admission coordinator at CADAS who performed the
Defendant’s drug screen on May 9, stated that, prior to the drug screen, the Defendant
had stalled nearly two hours by claiming that he was unable to urinate. During the
screen, Mr. Keltch discovered the Defendant’s “Whizzinator” and confiscated it. He then
instructed the Defendant to undergo another drug screen, and the Defendant tested
positive for cocaine and Oxycodone. When Mr. Keltch presented the results of this
screen to the Defendant, the Defendant admitted that he brought the “Whizzinator”
because he knew he was going to test positive for cocaine. The Defendant was thus
suspended from CADAS for a month. He was staffed with a treatment team and asked to

       2
         Billy Joe Keltch, who performed the drug screen, explained during his testimony that a
“Whizzinator” is a fake penis designed to pass urine from a urine storage bag.
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attend thirty twelve-step meetings, get a sponsor, pick a home group, and to follow-up
with a treatment team. However, on June 29, the Defendant was discharged at staff
request because he missed eleven group sessions and only attended three of his twelve-
step meetings. Furthermore, even when he did attend, he seemed “unconcerned and
aloof,” appeared resistant to treatment, and often fell asleep during sessions. Mr. Keltch
stated, however, that CADAS would be willing to reinstate the Defendant into their
treatment program if the Defendant was willing to participate in the program and
complete its requirements.

       Dr. Elaine Kelly, the director of the Hamilton County Drug Court, stated that the
Defendant was a client of the drug court program, and he successfully graduated from the
program in 2013. According to Dr. Kelly, the Defendant performed well in the structured
environment that the drug court provided, as the Defendant did not fail any of his drug
screens during that time.

       Brian Bush, a court liaison for the House of Refuge,3 stated that, if the Defendant
were released on probation, then House of Refuge would accept him into their program.

       Beverley Clark, the Defendant’s mother, testified that the Defendant currently
resided with his fiancée and their three children. Ms. Clark stated that the Defendant was
financially responsible for all three of his children.

       The Defendant testified that he had no excuse for violating probation and relapsing
but begged mercy of the court to be put back on probation, citing his need to provide for
his children. He believed that he would be successful in managing his addiction if the
court placed him in a structured environment. On cross-examination, the Defendant
admitted that he planned his May 2016 relapse almost a month in advance, explaining
that he had purchased the “Whizzinator” in April and stockpiled his own urine the day
before he attempted to fraudulently pass his drug screen. He also admitted that he
avoided paying his restitution and following through with his treatment programs because
he wanted to relapse and did not want to be sober.

       The trial court found substantial evidence that the Defendant had violated his
probation because he fraudulently attempted to pass a drug screen, failed to pass a drug
screen, and failed to pay court-ordered restitution. In determining the consequences of
the Defendant’s violations, the trial court balanced the interests of the public, the interests
of fundamental justice, and the interests of the Defendant. The trial court noted that the
Defendant had repeatedly failed to manage his drug addiction when the trial court applied

       3
         According to Mr. Bush, the House of Refuge is a highly-structured, faith-based program for
recovering drug addicts.
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lesser sanctions and that he willfully violated his probation, as evidenced by his
“deliberate and planned” attempt to pass a drug screen fraudulently. Therefore, the trial
court concluded that the Defendant was not a good candidate for probation and ordered
the execution of his sentences.

                                       II. Analysis

       On appeal, the Defendant argues that the trial court abused its discretion by calling
the Defendant’s sentences into execution instead of allowing him to continue his course
of drug rehabilitation. The State argues that the trial court exercised proper discretion in
calling his sentences into execution because the Defendant violated the terms of his
probation. We agree with the State.

       Upon a finding by a preponderance of the evidence that a defendant has violated a
condition of his or her probation, a trial court may revoke probation and order the
imposition of the original sentence. Tenn. Code Ann. §§ 40-35-310, -311 (2014); State v.
Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005) (citing State v. Mitchell, 810
S.W.2d 733, 735 (Tenn. Crim. App. 1991)). We will not disturb the trial court’s ruling
on appeal absent an abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001) (citing State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). To establish an abuse
of discretion, a defendant must show that there is “no substantial evidence” in the record
to support the trial court’s determination that a violation of probation has occurred. Id.
Proof of a violation does not need to be established beyond a reasonable doubt. State v.
Milton, 673 S.W.2d 555, 557 (Tenn. Crim. App. 1984). Rather, if a trial court finds by a
preponderance of the evidence that a violation has occurred, the court may revoke the
probation and suspension of the sentence. Tenn. Code Ann. § 40-35-311(e) (2014).

       Once a trial court has determined that a violation of probation has occurred, the
court has the discretionary authority to order the defendant to: “(1) order confinement;
(2) order execution of the sentence as originally entered; (3) return the defendant to
probation on appropriate modified conditions; or (4) extend the defendant’s probationary
period by up to two years.” State v. Brandon L. Brawner, No. W2013-01144-CCA-R3-
CD, 2014 WL 465743, at *2 (Tenn. Crim. App. Feb. 4, 2014) (citing Tenn. Code Ann. §§
40-35-308(a), -308(c), -310, -311(e); State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999)).
The determination of the proper consequences of the probation violation embodies a
separate exercise of discretion. State v. Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App.
2007).

       In the present case, the trial court found that the Defendant violated the terms of
probation when he failed to make his court-ordered restitution payments, failed drug
screens, and attempted to fraudulently pass a drug screen using a “Whizzinator.” On
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appeal, the Defendant does not dispute the fact that he violated his probation in this
manner. The Defendant’s admission that he violated the terms of his probation, alone,
constitutes substantial evidence to support the revocation of probation. See State v.
Christopher Nathaniel Richardson, No. M2006-01060-CCA-R3-CD, 2007 WL 776876,
at *4 (Tenn. Crim. App. Mar. 15, 2007), no perm. app. filed. We conclude that the trial
court did not err in finding that the Defendant violated the terms of his probation.

       The Defendant claims that the trial court abused its discretion because the trial
court did not allow the Defendant to continue his present course of drug treatment. The
Defendant cites the testimony of the employees at CADAS and House of Refuge, stating
that they believed he would benefit from a structured program and that they would be
willing to enroll him in their programs to offer him that structure. However, the trial
court concluded that the Defendant was not a good candidate for probation and ordered
the execution of his sentences.

       Upon review, the record fully supports the trial court’s decision to impose the
Defendant’s sentences. The trial court noted that the Defendant had numerous prior
parole violations for similar drug-related offenses. Furthermore, the trial court noted that,
with the possible exception of drug court, the Defendant failed to successfully complete
the requirements of lesser sanctions. Therefore, the trial court’s skepticism that the
Defendant would succeed under lesser sanctions was not an unreasonable abuse of
discretion. The trial judge exercised conscientious judgment when he determined that the
Defendant would likely fail to avail himself of the tools of recovery, since the Defendant
previously had access to these tools but had willfully failed to take advantage of them.
Having already provided the Defendant with probation, the trial court was well within its
authority to order that he serve his sentence in confinement.

                                      III. Conclusion

        We conclude that the trial court did not abuse its discretion when it called the
Defendant’s previous sentences into execution. After finding by a preponderance of the
evidence that the Defendant had violated the terms of his probation, the trial judge
carefully considered the Defendant’s history of deception and uncooperativeness to
determine that the Defendant was unlikely to be rehabilitated of his drug addiction
outside of confinement. Therefore, for the aforementioned reasons, the judgment of the
trial court is affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE

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