        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Brief December 16, 2014

         STATE OF TENNESSEE V. WILLIAM KENNETH LAWSON

               Direct Appeal from the Circuit Court for Warren County
                      No. F13297    Larry B. Stanley, Jr., Judge


                 No. M2014-00612-CCA-R3-CD - Filed March 17, 2015


The defendant, William Kenneth Lawson, appeals the revocation of his probationary
sentence. He pled guilty to possession of a controlled substance with intent to deliver and
violation of his habitual traffic offender status. As a result, he was sentenced to an effective
term of eight years on supervised probation. Subsequently, a violation warrant was issued
alleging that the defendant had violated the terms and conditions of his probation agreement
by being arrested on new charges. Following a hearing, the trial court ordered revocation of
the probation and that the defendant serve the remainder of his sentence in incarceration. On
appeal, the defendant contends that there is not sufficient evidence in the record to support
the court’s finding that a violation occurred. Following review of the record, we conclude
that there was no abuse of discretion in the court’s decision to revoke probation. As such,
the judgment of the trial court is affirmed.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and R OBERT W. W EDEMEYER, J., joined.

L. Scott Grissom, Assistant Public Defender, McMinnville, Tennessee, for the appellant,
William Kenneth Lawson.

Herbert H. Slatery, III,, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Lisa Zavogiannis, District Attorney General; and Thomas Minor, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                          OPINION
                      Procedural History and Factual Background

        In March 2012, the defendant pled guilty to possession of a Schedule VI controlled
substance with intent to deliver and to violation of his habitual traffic offender status, both
Class E felonies. For each conviction, the defendant was sentenced, as a persistent offender,
to a term of four years, which was to be served on supervised probation following service of
115 days in the county jail. The sentences were ordered to be served consecutively, resulting
in an effective eight-year probationary sentence with service of 230 days.

       In August 2013, the defendant was indicted by a Warren County grand jury for
delivery of a Schedule II controlled substance, to wit morphine. As a result, a probation
violation warrant was issued alleging that the defendant had violated the terms and
conditions of his sentence by receiving additional criminal charges. A hearing was held on
the matter in March 2014, at which multiple witnesses testified.

       The first witness called was the defendant’s probation officer, Sally Cantrell. She
indicated this was the defendant’s first violation in this case and that she had experienced no
other problems with the defendant’s compliance.

       Three police officers testified as to the circumstances surrounding the two controlled
drug buys which resulted in the charges against the defendant. First, Detective Tony Jenkins
with the McMinnville Police Department testified regarding a drug buy which took place on
May 14, 2013. Detective Jenkins was working with a confidential informant, Tommy
Hodges, who had arranged to buy drugs from the defendant. Detective Jenkins and another
officer met with Mr. Hodges at an arranged location, and Mr. Hodges’ car and person were
searched. He was then given $145 and equipped with a transmitting device that allowed the
officers to monitor the transaction. Mr. Hodges then drove his vehicle to the Partridge
Meadow apartments, and Detective Jenkins followed in his vehicle. He did not follow Mr.
Hodges into the complex, as he was known in the neighborhood to work drug crimes and did
not want to interfere with the transaction. However, he did hear the entire transaction
through the transmitter. He was able to recognize Mr. Hodges’ voice but not that of the
defendant, as he was unfamiliar with the defendant. During the transaction, Officer Ben
Cantrell stopped to speak with Detective Jenkins, and Detective Jenkins asked Officer
Cantrell to drive through the apartment complex. Detective Jenkins informed him that Mr.
Hodges was driving a Windstar minivan.

       At the conclusion of the transaction, Mr. Hodges returned to the prearranged location,
and Detective Jenkins followed. Mr. Hodges and his car were again searched. He gave
Detective Jenkins two pills, later determined to be morphine, and returned $5. Mr. Hodges

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was paid for his participation in the drug buy.

        Officer Cantrell also testified and confirmed that he had encountered Detective
Jenkins on that day and was asked to drive through the apartment complex. Officer Cantrell
stated that while he was sitting with Detective Jenkins, he was able to hear the transaction
through the transmitter. He recognized the voices of the defendant and Mr. Hodges, both of
whom he was very familiar with.

       According to Officer Cantrell, Detective Jenkins told him that Mr. Hodges was
driving a black truck. He entered the apartment complex, where the defendant resided, and
saw the defendant standing close to a black truck driven by Mr. Hodges. The defendant
waved at Officer Cantrell and began to walk away from the truck. Officer Cantrell continued
through the parking lot and left the complex.

        Next, Investigator Jody Cavanaugh with the Warren County Sheriff’s Department
testified regarding another drug buy which took place on May 9, 2013. He stated that he was
assisted in the matter by Detective Jenkins and Officer Carpenter. Just as in the other
controlled buy, the officers met with Mr. Hodges and searched both his person and vehicle,
a black truck, immediately prior to the transaction. Mr. Hodges’ brother, who was present
during the transaction, was also searched. Mr. Hodges was given $150 and was fitted with
a transmitter. Investigator Cavanaugh then followed Mr. Hodges to the Partridge Meadow
Apartments. In addition to hearing the transaction through the transmitter, Investigator
Cavanaugh was able to maintain a visual on Mr. Hodges. He observed the defendant, whom
he personally knew, approaching Mr. Hodges. He saw the defendant get inside Mr. Hodges’
vehicle, and they drove around the block and immediately returned. During this period, Mr.
Hodges and the defendant were heard discussing the drug transaction through the transmitter.

       At the conclusion of the transaction, Mr. Hodges met Investigator Cavanaugh. He and
his vehicle were again searched. He was in possession of three pills, later determined to be
morphine, and no cash.

       After an agent with the Tennessee Bureau of Investigation testified that the pills
submitted for testing were in fact morphine, Detective Jenkins was recalled to testify
regarding the discrepancy in the type of vehicle Mr. Hodges was driving. He stated that the
defendant did have a black truck, but he believed that during the May 14 transaction, the
defendant was driving a minivan. However, he stated that was only his recollection, as there
was no reference in his notes regarding the type of vehicle.

      After hearing the evidence presented, the trial court concluded that there was ample
evidence that the defendant had violated his probationary sentence by selling a controlled

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substance, which was a failure to obey the law. As such, the court revoked the defendant’s
probation and ordered service of the balance of the original sentence. The defendant timely
appeals the revocation.

                                          Analysis

        On appeal, the sole issue raised by the defendant is whether the trial court abused its
discretion in revoking his probation because there is insufficient evidence in the record to
conclude that the defendant committed the two drug offenses and, thus, violated the terms
of his probation. He contends that the violation was not established by a preponderance of
the evidence because the proof “did not rise to the level to tip the scales of justice one way
or another. While it is possible that the State’s allegation are true, it is just as likely the
allegations are not true and the morphine tablets were acquired from a source other than the
[defendant].” To support his argument, the defendant relies upon the following: (1) that his
probation officer testified that the defendant had no other problems during his supervision;
(2) that Detective Jenkins did not see the defendant during the transaction and could not
identify his voice; (3) the discrepancy as to the type of vehicle Mr. Hodges was driving; and
(4) that Mr. Hodges was accompanied by his brother during one of the transactions.

        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 defendant has violated a condition
of his or her probation. T.C.A. §§ 40-35-310, -311 (2010); 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)). On appeal, this court will not disturb the trial court’s ruling 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, the
defendant must show that there is no substantial evidence in the record to support the trial
court’s determination regarding the probation violation. 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 the 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. T.C.A. § 40-35-311(e). In a probation revocation hearing, the credibility of
witnesses is to be determined by the trial court. Mitchell, 810 S.W.2d at 735.

       Once the court has determined a violation of probation has occurred, it retains the
discretionary authority to order the defendant to: (1) serve his or her sentence in
incarceration; (2) serve the probationary term, beginning anew; or (3) serve a probationary
period that is extended for up to an additional two years. State v. Hunter, 1 S.W.3d 643, 647
(Tenn. 1999); see also T.C.A. §§ 40-35-308, -310, -311. The determination of the proper
consequence of the probation violation embodies a separate exercise of discretion. State v.

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Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).

       In its oral ruling from the bench, the trial court found as follows:

              After listening to all the proof regarding whether or not [the defendant]
       violated the terms of his probation I think it’s abundantly clear that he did. I
       have heard the argument made many times, . . . that an informant might take
       the money and make up a drug buy in order to get paid. I’ve yet to see that
       happen and I don’t know why someone would do that for a hundred dollars,
       to work with the police department and the sheriff’s department to make a drug
       buy, to fake one. I don’t think that’s what happened here. I’m certain that it
       wasn’t. These gentlemen involved in these two transactions are very
       experienced in what they do and it was abundantly clear that [the defendant]
       provided controlled substances in exchange for money.

             [The defendant] has an extremely long criminal history and will be
       revoked for the balance of his sentence in Case Number 13297. He will
       obviously be given credit for any time he’s already served on this case.

        We are unable to find merit in the defendant’s argument. While he is correct that the
violation must be found by a preponderance of the evidence, he is incorrect in his assertion
that the evidence here fails to rise to that level. Additionally, as pointed out by the State, to
find that the trial court abused its discretion in concluding that a violation occurred, this court
does not weigh the evidence to determine if one version is “just as likely .. . . to be true.”
Instead, a defendant challenging the revocation must establish that the record contains no
substantial evidence to support the conclusion of the trial court that a violation occurred.
Harkins, 811 S.W.2d at 82. The defendant cannot meet that burden on this record.

       The record contains abundant proof supporting the court’s conclusion that the
defendant violated the terms and conditions of his probation by failing to obey the laws.
Multiple officers testified to the facts surrounding the controlled drug buys. The confidential
informant and his vehicle were searched before and after the transactions. The confidential
informant was given money and returned with morphine pills. The officers testified that
during the controlled buy, they witnessed the defendant with Mr. Hodges and heard the
transactions being conducted through the transmitter.

      The fact that the defendant had no other probation violations has no bearing
whatsoever on a determination if he in fact committed the one charged. Likewise, that the
confidential informant was accompanied by his brother on one of the buys is immaterial to
whether the defendant did in fact sell the drugs. Like the confidential informant, his brother

                                                -5-
was searched and did not possess any illegal substances. After their departure, the officer
was constantly monitoring their activities through the transmitter, as well as maintaining
visual contact.

        Furthermore, the fact that Detective Jenkins did not maintain visual contact with Mr.
Hodges during the transaction goes only to the weight of the evidence. He was still hearing
the transaction through the transmitter. Additionally, Officer Cantrell did drive through the
apartment complex and saw the defendant standing next to a truck occupied by the
confidential informant. While Detective Jenkins may have been confused about the type of
vehicle Mr. Hodges was driving, Officer Cantrell was familiar with Mr. Hodges and was able
to personally recognize him.

       The evidence before the trial court was more than ample to conclude that the
defendant more likely than not committed two drug offenses. As such, the trial court was
statutorily authorized to order the revocation of the defendant’s probation and to order that
he serve the remainder of his sentence in incarceration.

                                     CONCLUSION

       Based upon the foregoing, the judgment of the trial court is affirmed.




                                          ________________________________
                                          JOHN EVERETT WILLIAMS, JUDGE




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