        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs August 16, 2016 at Knoxville

          STATE OF TENNESSEE v. DARRELL THOMAS GOOCH

                   Appeal from the Circuit Court for Dyer County
              Nos. C07-211A & 11-CR-420      R. Lee Moore, Jr., Judge




             No. W2016-00117-CCA-R3-CD - Filed September 30, 2016




The Defendant, Darrell Thomas Gooch, appeals as of right from the Dyer County Circuit
Court‟s revocation of his probation and reinstatement of his effective ten-year sentence.
The Defendant contends (1) that the trial court abused its discretion by revoking his
probation because it relied on an additional probation violation introduced at the hearing
that was not included in the violation warrant; (2) that the trial court ignored factors that
mitigated his presence at the rape victim‟s apartment complex; and (3) that the four
curfew violations, alone, were insufficient to revoke probation. Following our review,
we affirm the trial court‟s revocation of the Defendant‟s probationary sentence and order
of confinement.

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

D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

James E. Lanier, District Public Defender; and H. Tod Taylor, Assistant District Public
Defender, for the appellant, Darrell Thomas Gooch.

Herbert H. Slatery III, Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; C. Phillip Bivens, District Attorney General; and Karen Burns,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND
        On December 11, 2007, the Defendant pled guilty in case number C07-211A to
sale 0.5 grams or more of cocaine, a Class B felony, for which he received an eight-year
sentence, with one year to be served in incarceration and the remainder on supervised
probation. See Tenn. Code Ann. § 39-17-417. This sentence was run consecutively with
“[a]ll prior sentences and/or parole revocations in the [S]tate of Illinois.” Then, on May
30, 2014, in case number 11-CR-420, the Defendant pled guilty to attempted rape, a
Class C felony, for which he received a sentence of ten years to be served on probation.1
See Tenn. Code Ann. §§ 39-12-101, -13-503. The ten-year sentence was to be served
concurrently with the prior eight-year sentence in case number C07-211A.

       On September 1, 2015, the Defendant‟s probation officer filed a probation
violation report listing both case numbers.2 The probation officer wrote that the
Defendant violated Rule 6 of his probation when he failed to obey curfew on four
different dates. The officer further alleged that the Defendant, a registered sex offender,3
violated Rule 12 of his probation in three ways: (1) two pornographic videos were found
on the Defendant‟s phone; (2) the Defendant used his phone for a “sexually oriented
purpose”; and (3) on August 9, 2015, the Defendant went to the last known residence of
his victim.

       At the hearing, the Defendant‟s probation officer, Charles Smith, testified that the
Defendant had been out past curfew on four different occasions—July 26, 2014; February
14, 2015; February 28, 2015; and March 7, 2015. Due to the Defendant‟s status as a
violent sexual offender, he was required to wear a Global Positioning System (“GPS”)
tracking device. Ofc. Smith confirmed that the Defendant was outfitted with such a
device at the time he committed the attempted rape in case number 11-CR-420.

       Ofc. Smith further testified that the Defendant was forbidden from visiting 600
Eaglewood Drive (“Eaglewood Apartments”) as a condition of his probation because the
rape victim lived there. On August 9, 2015, the Defendant‟s GPS device indicated he
was at that location, and the Defendant had not obtained prior authorization from Ofc.
Smith to be there. According to Ofc. Smith, a violation of this probationary condition
was not contingent on whether the victim was actually present at the time of the
Defendant‟s visit; however, Ofc. Smith was unsure if the victim still lived there in August
2015.



1
   His sentence in case number C07-211A was revoked for ninety-three days based upon his guilty plea to
attempted rape.
2
    The Defendant‟s sentence in case C07-211A was set to expire on December 8, 2015.
3
     The Defendant had previously been declared a sex offender and required to register in the State of
Illinois.
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       Describing another violation, Ofc. Smith testified about pornography he found on
the Defendant‟s phone. Ofc. Smith conducted “a home check” with the Defendant and
asked to view the phone that the Defendant used to call Ofc. Smith. The Defendant
indicated the phone was on the table. Ofc. Smith retrieved the phone and found two
pornographic videos on the phone that said “downloaded.” According to Ofc. Smith,
“[t]hey were the same videos, but the videos started at two different points.” Ofc. Smith
photographed the videos because he did not “have the right to seize [the Defendant‟s]
phone[,]” and those photographs were entered into evidence.

       On cross-examination, Ofc. Smith was asked about a letter signed by the site
manager of Eaglewood Apartments indicating that the victim had moved from that
location almost a year prior to the Defendant‟s presence. That letter was admitted as an
exhibit.

       Ofc. Smith agreed that the violation report was not filed until several months after
the curfew violations occurred. Instead, Ofc. Smith initially decided to sanction the
Defendant by lowering his curfew time. Ofc. Smith confirmed that he discussed these
four incidences with the Defendant, and the Defendant never indicated that he missed
curfew due to employment issues. Thereafter, Ofc. Smith testified that the Defendant
“was instructed to go straight to work and . . . straight home” because of an incident in
January 2015 when the Defendant had broken into the “medicine tray” of his fiancée,
Barbara Thompson, while she was in the hospital. Although a police report was filed, the
hospital decided not to pursue charges according to Ofc. Smith, “[s]o [he] took a sanction
as in trying to lower his curfew to go straight to work and home, nowhere else.” The
Defendant objected, arguing that he had no notice that Ofc. Smith would testify about the
medicine tray incident at the hospital. The trial court overruled the objection, concluding
that the defense had opened the door for this line of questioning by asking “why [Ofc.
Smith] had not filed a report[.]”

       Ofc. Smith explained that the Defendant was living with his mother at the time of
the four curfew violations and that he was trying to leave early before work to go see Ms.
Thompson, which he did not have permission to do “because of the incident at the
hospital.” According to Ofc. Smith, the Defendant did not notify him of any
transportation issues that caused him to violate his curfew restrictions.

       Ofc. Smith reiterated that he took the phone with the pornography on it directly
from the Defendant, disagreeing that he took it from Ms. Thompson, the Defendant‟s
fiancée, although she was admittedly present at the time. Ms. Thompson explained to
Ofc. Smith that it was she and one of her ex-boyfriends depicted in the video. However,
Ofc. Smith played the video and confirmed that Ms. Thompson and her ex-boyfriend
were not the subjects of the video; Ofc. Smith had personally supervised Ms.
Thompson‟s ex-boyfriend. In response to Ofc. Smith‟s allegations, Ms. Thompson then


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claimed her daughter was the female in the video. Ofc. Smith agreed that sometimes Ms.
Thompson answered the phone when he called the Defendant.

       Next to testify was probation officer Darryl McElrath, who was with Ofc. Smith
when they went to the Defendant‟s house for “a home visit” on August 11, 2015. Ofc.
McElrath testified that Ofc. Smith asked for the Defendant‟s phone shortly after they
entered the residence. Ofc. McElrath further testified that the Defendant tried to hand
Ofc. Smith a phone he had on his person, but Ofc. Smith asked to see the phone the
Defendant usually called Ofc. Smith on. Ofc. McElrath testified that the Defendant
pointed to a phone on the table, and Ofc. Smith picked up that phone. Ofc. McElrath
watched the videos found on the phone along with Ofc. Smith, and he likewise believed
them to be pornographic in nature. Furthermore, Ofc. McElrath likewise did not believe
Ms. Thompson‟s claim that the videos contained images of Ms. Thompson and her ex-
boyfriend. He confirmed that Ms. Thompson changed her story once they watched the
videos, asserting then that it was her “daughter and her [daughter‟s] boyfriend” in the
videos.

       Ms. Thompson testified on behalf of the Defendant. She stated that the phone
Ofc. Smith viewed belonged to her but agreed that it was the phone the Defendant “used
as a contact phone” with “the probation office.”

        On cross-examination, Ms. Thompson confirmed that she had a misdemeanor
conviction for simple possession of marijuana, but she had completed her probation on
that charge. She disagreed that she acted as a confidential informant “[t]o work off [her]
charges” related to “a drug problem.” When asked if she was aware that the Defendant
had written down her phone number as his contact number with the probation office and
stated it was his number, Ms. Thompson replied that she did not “believe that.”

       Next, the Defendant testified that he did not download the pornographic videos
and that the phone viewed by Ofc. Smith belonged to Ms. Thompson. He agreed that he
used the phone to contact the probation office but claimed that he only did so because he
lacked funds to buy his own phone. He asserted that he also used his mother‟s phone
number as a contact number. The Defendant further stated that his son and Ms.
Thompson‟s daughter had access to Ms. Thompson‟s phone, but he had asked Ms.
Thompson not to let the children use the phone.

       The Defendant testified that he missed curfew on the four dates listed in the
violation report because he was borrowing Ms. Thompson‟s car. Although he did have
regular use of Ms. Thompson‟s car to get to work, Ms. Thompson had doctor‟s
appointments that required her to use the vehicle, so he “had to get that car back to her”
when she needed it “or [he] wasn‟t gonna have no way back and forth to work.” He
claimed that he explained his predicament to Ofc. Smith. The Defendant also asserted
that sometimes the GPS device “went off” because it was not set to the proper time zone.

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       The Defendant admitted he was at Eaglewood Apartments on August 9, 2015, but
stated that he was visiting his twenty-seven-year-old daughter, whom he had not seen in
twenty years. The Defendant confirmed that he was only there for thirteen minutes and
was accompanied by Ms. Thompson and another woman. The Defendant asserted that he
left promptly when Ofc. Smith called Ms. Thompson‟s phone and asked why the
Defendant was at Eaglewood Apartments. The Defendant claimed that Ofc. Smith “said
it would all be right” if they would just leave the premises and “meet somewhere else.”

        On cross-examination, the Defendant stated that, when he visited Eaglewood
Apartments that day, he did not know whether the victim still resided there or not. The
Defendant said that he “went to the opposite building way on the other end.” He claimed
that his daughter, who was from Illinois, did not know the area well and that he had to go
to Eaglewood Apartments and get her because she was there visiting with a friend. The
Defendant asserted that he did not know he was prohibited from visiting the apartments.

       Furthermore, the Defendant said that he received permission to go see Ms.
Thompson in the hospital following her surgery. However, he denied breaking into the
medicine tray at the hospital during that visit and claimed that he did not get into
“trouble” because he was searched and they did not find anything on his person.

      As a registered sex offender, the Defendant was aware that he was not supposed to
possess any kind of pornographic material, and he did not “keep a phone” for that reason.
He denied knowing that Ms. Thompson‟s phone contained pornographic videos and
claimed that he had “a government phone” of his own.

       Ofc. Smith was recalled and confirmed that the Defendant had provided his
mother‟s phone number as a contact number while he was living with her. However,
once the Defendant moved in with Ms. Thompson at an approved address, he provided
Ms. Thompson‟s phone number to Ofc. Smith. He also supplied the “government food
stamp phone” later to Ofc. Smith as a contact number. According to Ofc. Smith, the
Defendant never asserted that the phone in question belonged to Ms. Thompson until the
hearing.

       Ofc. Smith added that, on September 27, 2015, after the violation warrant had
been filed, the Defendant‟s GPS tracking device indicated that he was again in the area of
Eaglewood Apartments. Ofc. Smith phoned the Defendant and asked him what he was
doing there on a Sunday, to which the Defendant replied that he was “over there all the
time” for doctor‟s appointments. Ofc. Smith opined that the Defendant did not have such
an appointment on a Sunday, and Ofc. Smith made a “contact note” describing the
incident. The Defendant objected to this testimony, saying that he had no prior notice of
the September 27, 2015 incident, but the trial court overruled the objection and entered
the “contact note” regarding the September incident into evidence. Ofc. Smith clarified
that he observed the Defendant driving north on Parr Avenue and the Defendant “had just

                                            5
passed the Eaglewood Drive exit.” The Defendant was not seen actually in Eaglewood
Apartments, only in the area; however, Ofc. Smith stated that he had warned the
Defendant that being in the area might set off his GPS device. When Ofc. Smith asked
the Defendant why he was “in the area after a violation [had] been filed on him,” the
Defendant told Ofc. Smith that he was using Parr Avenue to get to Wal-Mart. Ofc. Smith
opined that the September incident was proof that the Defendant was “gonna do what he
want[ed] to do.”

       After finding that the Defendant had violated the terms of his probation, the trial
court revoked the Defendant‟s probation and ordered him to serve the balance of his
effective ten-year sentence in confinement. In so concluding, the trial court reasoned as
follows:

      I think it is enough to violate him under the circumstances. The testimony
      of [Ofc.] McElrath and [Ofc.] Smith is more persuasive than that of Ms.
      Thompson or [the Defendant]. . . . He‟s got the curfew violations. And
      then we get to August and then we get to the things that finally breaks—the
      straw that breaks the camel‟s back. I think the situation is that [the
      Defendant] is simply not gonna be told what to do.

             Whether the victim was still living there or not is not the issue.
      [Special condition number 8 of Rule 12] requires him not to go around
      where the victim at any time was. The rule that [Ofc.] Smith read is very
      clear about that. He‟s not supposed to be there. The [c]ourt finds the
      testimony of [Ofc.] Smith and what‟s shown on the violation to be
      persuasive.

The Defendant perfected a timely appeal.

                                      ANALYSIS

        The Defendant contends that the trial court erred when it relied on his visit to
Eaglewood Apartments on September 27, 2015, as a basis for revoking his probation
because he did not have notice of the incident prior to the hearing. The Defendant further
contends that there were mitigating factors to his presence at Eaglewood Apartments in
August that the trial court ignored. Additionally, the Defendant contends that the four
curfew violations were not severe enough to constitute a probation violation and should
not have been used to revoke probation, noting that it was “undisputed that said curfew
violations were because of a transportation issue to and from work.” Lastly, he notes the
trial court found no merit to the allegation of pornography downloaded on the phone,
observing that the trial court made no mention of this allegation in its ruling.



                                            6
        The State responds that the four curfew violations alone were enough to support
full revocation because the Defendant admitted the violations and the trial court fully
accredited Ofc. Smith‟s testimony; accordingly, “all of his arguments are rendered
irrelevant by the uncontested curfew violations[.]” The State also submits that other less
restrictive measures besides confinement were attempted and failed, noticing that several
violations occurred, including pornography possession and the Defendant‟s presence at
the victim‟s last known address; that the Defendant‟s probation in case number C07-
211A had previously been revoked; and that Ofc. Smith had already implemented
sanctions by lowering curfew. We agree with the State that the evidence presented at the
revocation hearing supports full revocation.

       A trial court may revoke a sentence of probation upon finding by a preponderance
of the evidence that the defendant has violated the conditions of his release. Tenn. Code
Ann. § 40-35-311(e). If the trial court revokes the probation, it has the right to “extend
the defendant‟s period of probation supervision for any period not in excess of two (2)
years,” “commence the execution of the judgment as originally entered,” or “[r]esentence
the defendant for the remainder of the unexpired term to any community-based
alternative to incarceration.” Tenn. Code Ann. §§ 40-35-308(c), -35-311(e). In a
probation revocation hearing, the credibility of the witnesses is determined by the trial
court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).

       The decision to revoke probation is in the sound discretion of the trial judge. State
v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); Mitchell, 810 S.W.2d at
735. The judgment of the trial court to revoke probation will be upheld on appeal unless
there has been an abuse of discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
To find an abuse of discretion in a probation revocation case, “it must be established that
the record contains no substantial evidence to support the conclusion of the trial judge
that a violation of the conditions of probation has occurred.” Id. (citing State v. Grear,
568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim.
App. 1980)); see also State v. Farrar, 355 S.W.3d 582, 586 (Tenn. Crim. App. 2011).
Such a finding “„reflects that the trial court‟s logic and reasoning was improper when
viewed in the light of the factual circumstances and relevant legal principles involved in a
particular case.‟” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v.
Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

       In the present case, the trial court first found the testimony of Ofc. Smith and Ofc.
McElrath to be more persuasive than Ms. Thompson‟s or the Defendant‟s. The trial court
then stated that the four curfew violations and the Defendant‟s presence at Eaglewood
Apartments in August were reasons for the revocation. The trial court noted that Rule 12
explicitly made clear that the Defendant was not to go to Eaglewood Apartments,
regardless of whether the victim was still living there. The trial court also stated that the
Defendant was “simply not gonna be told what to do.” The trial court did not specifically
rely on the possession of pornography in rendering its decision to revoke.

                                             7
       The Defendant admits that he violated curfew on these occasions without
permission but contends that the transportation issues he experienced getting to and from
work should excuse the four curfew incidents. The Defendant further notes that Ofc.
Smith did not find them to be severe enough at the time to file a probation violation
report. However, Ofc. Smith testified that he discussed these four incidences with the
Defendant and that he had no notice that the Defendant was late for work because of
transportation issues despite what the Defendant claimed at the hearing. Moreover, Ofc.
Smith initially imposed sanctions by lowering the Defendant‟s curfew time and
instructing him to go straight to and from work, which instructions the Defendant
continued to disobey.

       Moreover, the Defendant asserts that the trial court ignored several factors that
mitigated his August appearance at Eaglewood Apartments: (1) he was only there for
thirteen minutes to visit his daughter, whom he had not seen in twenty years, and he was
accompanied by others; (2) the rape victim did not live there anymore; and (3) he left the
complex promptly after Ofc. Smith‟s phone call. We agree with the trial court that the
rules of the probation made it clear the Defendant was prohibited from being at
Eaglewood Apartments. Ofc. Smith testified that the Defendant had not obtained prior
authorization to be there and that a violation of this condition was not contingent upon
the victim‟s actually being present at the time of the Defendant‟s visit. Additionally,
based upon the Defendant‟s own testimony, he did not know that the victim no longer
lived at Eaglewood Apartments when he visited.

       The Defendant also argues that the trial court committed error by basing its
revocation decision on the September 27, 2015 incident at Eaglewood Apartments
because he did not have notice of the incident prior to the hearing. The trial court‟s
ruling does not support that argument, remaining silent on the September incident all
together. Additionally, because we conclude that the other bases relied upon by the trial
court support revocation, we decline to address the Defendant‟s possession of
pornography as the trial court did not specifically reference that violation in its decision
to revoke. Although in so doing, we do not adopt the Defendant‟s assertion that trial
court found no merit to this allegation.

       The trial court found Ofc. Smith‟s testimony to be more persuasive than the
Defendant‟s, and we defer to this credibility determination on appeal. We are
unconvinced by the Defendant‟s arguments that the curfew violations and his presence at
Eaglewood Apartments in August should be mitigated and not serve as proper bases for
revocation. We agree with the trial court that the Defendant‟s behavior while on
probation shows that the Defendant is “simply not gonna be told what to do.” We
conclude that the trial court did not abuse its discretion in revoking the Defendant‟s
probationary sentence and ordering the balance of his effective ten-year sentence to be
served in confinement.


                                             8
                                     CONCLUSION

        Based upon the foregoing and the record as a whole, the judgment of the trial court
is affirmed.

                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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