             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                               AT KNOXVILLE             FILED
                            JANUARY 1998 SESSION
                                                            June 3, 1998

                                                        Cecil Crowson, Jr.
                                                        Appellate C ourt Clerk

STATE OF TENNESSEE                 )
                                   )    03C01-9705-CR-00176
      Appellee                     )
                                   )    KNOX COUNTY
v.                                 )
                                   )    Hon. Richard R. Baumgartner, Judge
LEMONT E. BLAIR                    )
                                   )    (Community Corrections Revocation)
      Appellant.                   )
                                   )


For the Appellant:                      For the Appellee:

Gerald L. Gulley, Jr.                   John Knox Walkup
Baker, McReynolds, Byrne,               Attorney General & Reporter
O’Kane, Shea & Townsend
P.O. Box 1708                           Clinton J. Morgan
Knoxville, TN. 37901-1708               Assistant Attorney General
                                        425 Fifth Avenue North
Randall E. Reagan                       2nd Floor, Cordell Hull Building
602 Gay Street, Ste. 905                Nashville, TN. 37243-0493
Knoxville, TN. 37902
                                        Randall Eugene Nichols
                                        District Attorney General

                                        Paula R. Gentry
                                        Assistant District Attorney General
                                        P.O. Box 1468
                                        Knoxville, TN. 37901-1468




OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

WILLIAM M. BARKER, JUDGE
                                                   OPINION

         The appellant, Lemont E. Blair, appeals as of right the Knox County Criminal

Court’s revocation of his community corrections sentence. We affirm the judgment of

the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

         In 1995, the appellant pled guilty to possession of cocaine with the intent to sell,

possession of marijuana with the intent to sell, and possession of a deadly weapon, to

wit: a hand grenade. The trial court sentenced the appellant to ten (10) years on

each count and ordered the sentences to be served concurrently in a community-

based alternative to prison (“CAPP”).1

         After serving approximately seven months in the community corrections

program, the appellant was arrested pursuant to a CAPP violation warrant. The trial

court conducted an evidentiary hearing and received testimony from witnesses

including appellant’s CAPP supervisor, Katherine Hancock. Ms. Hancock testified that

the appellant complied with the conditions of his sentence until around May 1996.

She stated that at that point, he began missing both his curfew and his weekly

meetings with supervisors and support groups. Moreover, Ms. Hancock testified that

the appellant had failed to pay any money towards his court costs.

         Through additional testimony, the State also sought to prove that the appellant

was involved in a robbery and shooting on June 25, 1996. The incident occurred

during the early morning hours at the Walter Taylor Housing Project in Knoxville,

Tennessee. According to eyewitness testimony, several black males surrounded and

assaulted the victim, Ryan Simmons, in a nearby parking lot. One witness, Jennifer

Smith, testified that she heard two gun shots and observed the appellant dragging the


         1
           The conditions of appellant’s CAPP included: (1) compliance with all state and federal laws; (2)
avoidance of alcoholic beverages, illegal drugs, and beer taverns; (3) reporting to CAPP officials of any
traffic citations or other arrests; (4) no fraternizing with any persons known to be dealers or users of
illegal drugs; (5) no possession or ownership of a firearm or weapon; (6) maintenance of lawful
employment; (7) compliance with an evening curfew; (8) monthly payment of court costs; (9) completion
of 96 hour s of c om mu nity se rvice work per ye ar; (1 0) pa yme nt of a yearly c om mu nity co rrec tions fee in
the amount of $60.00 dollars; (11) payment of restitution to a victim if applicable; (12) limitations on
travel within the state; (13) restrictions on setting dates for marriage or contracting any major debts; and
(14) par ticipation in D ay Repo rting Cen ter activities.

                                                         2
victim’s body behind a dumpster. Ms. Smith, however, did not see the shooting and

was unable to identify the appellant as the gunman.

         Detective Terry Clowers of the Knoxville Police Department testified that the

appellant was arrested and questioned about the shooting a few hours after police

arrived on the scene. The appellant admitted that he was at the housing project when

the shooting occurred; however, he stated that he merely happened upon the injured

victim and pulled him behind a dumpster for safety. He further indicated to Detective

Clowers that he was working at the housing project that evening as a barber.

Detective Clowers interviewed other witnesses who placed the appellant at the scene

before and after the shooting. However, there was no evidence that appellant was

involved in the crime and he was never charged.

         Although appellant disputed his involvement in the shooting, he conceded that

he had failed to comply with certain conditions of his community corrections sentence.

The trial court determined that appellant was in material violation of CAPP based upon

his curfew violations and his failure to attend weekly meetings. 2 The judge noted that

he had warned appellant at an earlier hearing that non-compliance in the community

corrections program would result in a custodial sentence.3 Accordingly, the trial judge

revoked community corrections and ordered the appellant to serve the remainder of

his sentence in the Tennessee Department of Correction.

         A trial judge may revoke a community corrections sentence upon finding that

the defendant has violated the conditions of his sentence by a preponderance of the

evidence. See Tenn. Code Ann. § 40-35-311(d) (Supp. 1995). The judgment of the

trial court in that regard will not be overturned on appeal absent an abuse of

discretion. See State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991); State v.


         2
          The trial court was unwilling to conclude that appellant was involved in the crime at the housing
proje ct. Ho weve r, the c ourt d eterm ined t hat a ppe llant’s pres enc e at th e crim e sc ene was proo f of his
curfew violation.

         3
          The trial court conducted a hearing on April 26, 1996, to check appellant’s progress in the
community corrections program. At that hearing, the court apparently found that appellant had been
sporad ic in his attend ance o f week ly CAPP m eetings.

                                                         3
Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981), perm. app. denied (Tenn.

1981).

         In this case, we conclude that the evidence of appellant’s CAPP violations was

sufficient for the trial judge to make a conscientious and intelligent judgment. The

appellant has conceded that he missed weekly meetings with his CAPP groups, he

violated his curfew, and he failed to pay court costs. As such, the revocation of his

community corrections sentence was proper.

         The judgment of the trial court is affirmed pursuant to Rule 20 of the

Tennessee Court of Criminal Appeals.




                                                  _____________________________
                                                  WILLIAM M. BARKER, JUDGE



CONCUR:


____________________________
JOSEPH M. TIPTON, JUDGE


____________________________
J. CURWOOD WITT, JR., JUDGE




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