                                                                                      09/10/2019
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE
                       Assigned on Briefs February 26, 2019

            STATE OF TENNESSEE v. MAKOYOUS HOUSTON

                 Appeal from the Criminal Court for Knox County
                        No. 106372 G. Scott Green, Judge
                    ___________________________________

                          No. E2018-01118-CCA-R3-CD
                      ___________________________________


The Appellant, Makoyous Houston, appeals the trial court’s revocation of his probation,
contending that the proof adduced at the hearing was insufficient to support the
revocation and that the trial court abused its discretion by ordering him to serve his
sentence in confinement. We affirm the judgment of the trial court.

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

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

Mark E. Stephens and Jonathan Harwell (on appeal), and Chloe Akers (at trial),
Knoxville, Tennessee, for the Appellant, Makoyous Houston.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Deborah Malone,
Assistant District Attorney General, for the Appellee, State of Tennessee.


                                      OPINION
                                I. Factual Background

       On September 16, 2015, the Appellant was indicted on charges of especially
aggravated kidnapping, aggravated assault, and domestic assault. Pursuant to a plea
agreement, the Appellant pled guilty to aggravated assault and agreed to be sentenced as
a Range II offender to ten years. The plea agreement further provided that the Appellant
could apply for probation. The remaining charges were dismissed. The trial court
ultimately sentenced the Appellant to serve one year in confinement and the remaining
nine years on supervised probation.
       On March 27, 2018, a probation violation warrant was issued alleging that the
Appellant failed to report for an intake appointment on February 13, 2018; that he
reported on February 20, 2018; but that he failed to report again in February or March.
The warrant further alleged that the Appellant’s whereabouts were unknown and that he
had failed to pay any of the required fees and costs. On April 5, 2018, the probation
violation warrant was amended to allege that the Appellant had been charged with simple
possession and casual exchange of marijuana on March 29, 2018, and that he had failed
to report the charges to his probation officer.

       At the probation revocation hearing, Officer Hunter Snodderly testified that he had
been employed by the Knoxville Police Department for four years and that he had been
trained in the detection and identification of narcotics, including how to distinguish the
smell of burned marijuana from the smell of raw marijuana.

       Officer Snodderly said that on March 15, 2018, he initiated a traffic stop of a
BMW that had a brake light out. The Appellant was driving the vehicle, and his small
child was a passenger. Because Officer Snodderly detected the smell of raw marijuana
coming from the vehicle, he asked the Appellant if any marijuana was in the vehicle, and
the Appellant responded that “he had thrown it out before [Officer Snodderly] stopped
him.” The Appellant stepped out of the vehicle at Officer Snodderly’s request, and
Officer Snodderly searched the vehicle. In the center console, he found a small plastic
baggie containing a green leafy substance he believed to be marijuana.

      On cross-examination, Officer Snodderly acknowledged that he did not find any
drug paraphernalia, money, or other drugs in the vehicle. Officer Snodderly issued the
Appellant a citation for possession of marijuana.

       Jacob White, a probation officer with the Tennessee Board of Probation and
Parole, testified that the Appellant was supposed to report for the first time on February
13, 2018. The Appellant did not report on that date. Although White did not call the
Appellant to tell him to report on February 20, he was “sure someone did.” The
Appellant reported to probation on February 20, but he did not report to probation again.

       On March 27, a probation violation warrant was issued alleging that the Appellant
had failed to report to the probation office. On April 5, White filed an amendment to the
warrant upon discovering that the Appellant had been cited for simple possession of
marijuana. The Appellant never informed White of the citation.

       On cross-examination, White said that he did not recall whether he was working
on February 13. However, after the Appellant failed to report, White received an email
from the “intake team” informing him that the Appellant had failed to report on February
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13, but he did not keep a copy of the email. White did not know how the Appellant was
notified that he was to report on February 20. He explained that the normal procedure
was that when someone failed to report, the intake team contacted the person to find out
why they failed to report, warned them of the consequences of the failure to report, and
rescheduled the appointment to the next date, which would explain why the Appellant
came in on February 20.

       White stated that as part of the intake procedure, a probationer was subject to a
drug screen. White did not recall whether the Appellant’s drug screen was negative but
acknowledged that he would have been informed of a positive test.

       White stated that the Appellant’s original probation officer was Paula Bothof, but
White did not know if she was at the probation office on February 20. White explained
that Bothof was transferred at the first of March, and White became the Appellant’s
probation officer. White acknowledged that he did not make any attempts to contact the
Appellant. White said that the Appellant would have been informed of the change in
probation officers if he had reported for his appointment.

       White thought that after February 20, the Appellant’s next appointment would
have been sometime during the first week of March. White said that even if the
Appellant did not know his probation officer had changed, the Appellant could have
contacted Bothof because she still worked for the probation department.

       On redirect examination, White stated that the Appellant was on enhanced
probation and was required to report twice a month. The requirement would have been
explained to the Appellant when he reported on February 20.

       The Appellant testified that he was released from custody on February 2, 2018,
and that he was given an initial reporting date of February 13, 2018. The Appellant said
that he arrived at the probation office early on February 13 and “signed in.” Nine or ten
people were in the lobby at the time. After waiting a couple of hours without his name
being called, the Appellant asked the desk clerk for help. The desk clerk asked for the
name of the Appellant’s probation officer, and he responded that he had not been
assigned a probation officer. The desk clerk gave him a card reflecting that he was to
report on February 20.

        The Appellant said that when he reported on February 20, he spent the entire day
at the probation office. He had a drug screen, had his photograph taken, obtained an
identification card, and had a mental evaluation. He spoke with one probation officer,
who asked if the Appellant knew the name of his probation officer. The Appellant
responded that he “had a card at the time in my folder saying Jacob White.” Before the
Appellant left, he handed his probation folder to probation officer Nathan Taylor. The
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Appellant told Taylor that he had not been given a return date. Taylor explained that
White was out of the office and said that he would leave White a message with the
Appellant’s contact information. Taylor told the Appellant that if White failed to contact
him in three weeks, the Appellant should call Taylor.

        The Appellant said that he thought he was supposed to report four times a month
while he was on enhanced probation. The Appellant said that his drug screen was
negative. He acknowledged that he was cited for possession of marijuana on March 15
and that he did not report the citation to his probation officer. When he reported to court
on the marijuana charge on March 29, he was arrested for the probation violation and
“didn’t make it into the courtroom.” The Appellant explained that during his last
sentencing hearing, the trial judge essentially said “not to let him down”; therefore, the
Appellant did not want to report a citation for simple possession of marijuana the first
time he reported to his probation officer. The Appellant said, “I planned on coming with
a straight foot forward instead of how everything played out.”

       The Appellant said that the marijuana did not belong to him, that he did not know
it was in the car, and that the car belonged to his girlfriend, Angelia Whitcomb. The
Appellant said that he had not smoked marijuana in more than two years.

       On cross-examination, the Appellant denied that the car smelled like marijuana.

       Upon questioning by the trial court, the Appellant said that he had been working at
Ruth’s Chris restaurant and that he had been allowed to return after he was released. The
Appellant acknowledged that he “dropped the ball” but said he was willing to comply
with the terms of probation.

        The trial court stated that it wanted to hear from the Appellant’s girlfriend, who
had been sworn in with the witnesses who were expected to testify. Defense counsel
stated that she had not planned to call her to testify. The trial court stated, “Well, then I’ll
call her.” Angelia Whitcomb testified that she had dated the Appellant for nearly four
years and that he was driving her 2001 BMW X5 on March 15. Whitcomb stated that the
marijuana found in the vehicle belonged to her and that the Appellant did not know
anything about it.

        The trial court asked the parties if the probation office kept logs that reflected who
signed in each day. The State responded affirmatively. The trial court told the State to
produce the logs and cautioned the Appellant, “If those logs are produced and they don’t
show your name on one or both of those dates, you’re going to the penitentiary. If they
do, I’ll decide what the appropriate sanction is.”


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       At a subsequent hearing, the State presented the sign-in logs maintained by the
probation office. The records did not show that the Appellant signed in on February 13;
however, he did sign in on February 20. The prosecutor stated, “I also spoke with the
intake officer and reviewed notes in our system and she does not have him on February
13th.”

       The court stated that the Appellant had been given an “advantageous resolution”
and a chance to serve his sentence on probation. The court accredited the officer’s
testimony that he smelled raw marijuana in the car and discredited the Appellant’s
testimony that he did not smell marijuana. The court also found that the probation office
logs reflected that the Appellant had been untruthful with the court about reporting on
February 13. The trial court revoked the Appellant’s probation and ordered him to serve
his original sentence in confinement. On appeal, the Appellant challenges the trial
court’s ruling.

                                       II. Analysis

       Upon finding by a preponderance of the evidence that the Appellant has violated
the terms of his probation, a trial court is authorized to order the Appellant to serve the
balance of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and
-311(e); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Furthermore, probation
revocation rests in the sound discretion of the trial court and will not be overturned by
this court absent an abuse of that discretion. State v. Leach, 914 S.W.2d 104, 106 (Tenn.
Crim. App. 1995). “A trial court abuses its discretion when it applies incorrect legal
standards, reaches an illogical conclusion, bases its ruling on a clearly erroneous
assessment of the proof, or applies reasoning that causes an injustice to the complaining
party.” State v. Phelps, 329 S.W.3d 436, 443 (Tenn. 2010).

       On appeal, the Appellant complains that the trial court failed to specifically find
how the Appellant knew to report on February 20 if he had failed to report on February
13. Additionally, he contends that the State failed to adduce proof to corroborate Officer
Snodderly’s testimony that marijuana was found in the car and failed to prove that the
Appellant had constructive possession of the marijuana. Finally, the Appellant asserts
that even if the revocation were proper, the trial court abused its discretion by ordering
the Appellant to serve his sentence in confinement because of a mere confusion about his
reporting date.

        The trial court need only find by a preponderance of the evidence that the
Appellant violated the terms of his probation. Tenn. Code Ann. § 40-35-311(e). The
trial court found that the Appellant failed to report to the probation office as directed on
February 13. Moreover, the Appellant admitted he did not report that he had been
charged with possession of marijuana. The record does not preponderate against the
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findings of the trial court. Upon finding that the Appellant violated the terms of his
probation, it was within the trial court’s authority to order the Appellant to serve his
original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e); State
v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991). Moreover, “an accused,
already on probation, is not entitled to a second grant of probation or another form of
alternative sentencing.” State v. Jeffrey A. Warfield, No. 01C01-9711-CC-00504, 1999
WL 61065, at *2 (Tenn. Crim. App. at Nashville, Feb. 10, 1999); see also State v.
Timothy A. Johnson, No. M2001-01362- CCA-R3-CD, 2002 WL 242351, at *2 (Tenn.
Crim. App. at Nashville, Feb. 11, 2002).

                                    III. Conclusion

      The judgment of the trial court is affirmed.


                                                _________________________________
                                                NORMA MCGEE OGLE, JUDGE




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