        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs December 11, 2012

            STATE OF TENNESSEE v. WILLIAM CARTER KING

             Direct Appeal from the Criminal Court for Fentress County
                    Nos. 9536, 10-108   E. Shayne Sexton, Judge


                No. M2011-02561-CCA-R3-CD - Filed March 20, 2013


The appellant, William Carter King, appeals the Fentress County Criminal Court’s revoking
the alternative sentences he received for guilty pleas to possession of a controlled substance
in a penal institution, a Class C felony; burglary, a Class D felony; and theft of property
valued more than five hundred dollars but less than one thousand dollars, a Class E felony.
Based upon the record and the parties’ briefs, we affirm the judgment of the trial court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL,
and R OGER A. P AGE, JJ., joined.

Thomas Harding Potter, Jamestown, Tennessee, for the appellant, William Carter King.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshay Dulany, Assistant Attorney
General; William Paul Phillips, District Attorney General; and John W. Galloway, Jr.,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                  I. Factual Background

       On July 9, 2009, the appellant pled guilty in case number 9536 to burglary, a Class D
felony, and theft of property valued more than five hundred dollars but less than one
thousand dollars, a Class E felony. He received consecutive six- and one-year sentences,
respectively, to be served as one year in confinement followed by six years of supervised
probation. Upon the appellant’s release from confinement, he was to enter and complete a
long-term drug rehabilitation program. On January 24, 2011, the appellant pled guilty in case
number 10-108 to possession of a controlled substance in a penal institution, a Class C
felony, and received a five-year sentence to be served in community corrections and
consecutively to the sentences he received in case number 9536. An order in the record
states that as part of his effective twelve-year sentence, the appellant was to complete a drug
treatment program at Faith Farm in Florida. That same day, January 24, the State filed a
Petition to Revoke Probation and Suspended Sentence in case number 9536, alleging that the
appellant had violated his probation by being charged with possession of a controlled
substance in a penal institution. The appellant entered Faith Farm for treatment in February
2011. On May 16, 2011, his community corrections officer filed a Petition for Violation of
Community Corrections, alleging that the appellant had been dismissed from Faith Farm for
dealing Oxycodone pills and falsifying a drug test.

       At the revocation hearing, Richard Moggett testified for the State that he was the
Assistant Director at Faith Farm Ministries in Fort Lauderdale, Florida.1 He explained that
Faith Farm was a sixty-year-old “faith based” drug and alcohol regeneration program and that
he was responsible for disciplinary actions and overseeing drug testing. The appellant
enrolled in the program in February 2011. Moggett said that during the appellant’s stay, the
appellant had “some medical issues” and was granted “passes” to go to a hospital in the area.
Moggett said that the appellant was “progressing well, but every so often, we would hear his
name come to us in association with some other behavior.” After the appellant’s last visit
to the hospital, he exhibited unusual behavior. Moggett asked the appellant if he had
received medication at the hospital, and the appellant said he had received a shot of
Morphine. Due to the appellant’s odd behavior, the appellant was tested for drugs. The
appellant tested positive for Morphine and Oxycodone. Although the appellant had not said
he received Oxycodone at the hospital, Moggett decided to let the appellant remain at Faith
Farm because “we could not find out if he had actually been given Oxycodone at the
hospital.” Four days later, the appellant was given another drug test. Moggett said that the
urine sample the appellant submitted for the test was “off color, dark brown, very hot to the
touch. In fact, the temperature was at 102 degrees.” The appellant was asked to leave the
program, and he did so immediately. Moggett notified the appellant’s probation officer that
the appellant had been dismissed from Faith Farm.

        On cross-examination, Moggett testified that the appellant’s behavior during his stay
at Faith Farm was “[p]retty normal behavior for a student in our program.” The appellant
had written on his application that he had stomach problems, and doctors had prescribed
Prilosec. Due to the appellant’s condition, he would have been allowed to go to the doctor
at least once per month. Moggett said that the appellant was allowed to go more often than
once per month because his condition “was such a problem for him.” The program at Faith


        1
       According to the transcript, Moggett testified that he was the “Assistance” Director at Faith Farm.
However, it is clear from his later testimony that he was the “Assistant” director.

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Farm was a nine-month program, but the appellant stayed only four months. He went to the
hospital at least six times during his stay. Moggett said that when the appellant returned from
his last visit to the hospital, the appellant was acting “[k]ind of lethargic, distracted.”
Moggett said he sensed that something was “out of the ordinary” for the appellant. Moggett
said he had been the Assistant Director of Faith Farm for four years, had no education in drug
rehabilitation, and was basing his intuition about the appellant from his experience and
eleven years of on-the-job training.

       Moggett testified that the drug test kits used by Faith Farm were the same ones used
by the criminal justice system in that area. After a person gave a urine sample for a test, the
collector placed a security tab over the top of the collection bottle, and the testee initialed it.
The results of the test were read within five minutes. A temperature strip on the bottle
determined the urine’s temperature. Moggett said that Faith Farm usually tried to have an
employee witness a testee give a urine sample and that “[w]e have on occasion found devices
that they attach to the thigh that would give a sample. They would actually run a tube
alongside of their genitals and use that.” He explained, “Any invalidation of that test, we
presume it is . . . on purpose and so, we dismiss.” The appellant’s second test was negative
for drugs, but the color and high temperature of his urine invalidated the test and resulted in
his dismissal from the program. The appellant was not given prior notice of the test, and he
was not checked for a device attached to his thigh after the test. Moggett acknowledged that
he had no explanation for the urine’s dark color and high temperature.

         Candace Norman testified that she was the appellant’s community corrections officer
and began supervising him on January 24, 2011. Norman said that she arranged for him to
go to Faith Farm and that “I truly believe in their program.” Norman had never known Faith
Farm to dismiss someone from the program inappropriately. On May 14, 2011, she received
a letter informing her that the appellant had been dismissed from the program. The appellant
also telephoned Norman and informed her that he had been discharged. Norman filed the
Petition for Violation of Community Corrections and told the appellant that he needed to
return to Fentress County. The appellant did not return to Fentress County voluntarily.

      The trial court determined that the State had established a probation violation by a
preponderance of the evidence. Specifically, the trial court stated,

               The protocol in taking this - what was characterized as old urine
               was established by the witness. The language itself speaks [that]
               the client falsified. I think [defense counsel] takes exception to
               that because there is no showing that he actually rendered the
               test, that he received it from someone else or if he had -- had it
               put up. The fact of the matter is that the Faith Farms has

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              established that there was a drug test that could not be tested. In
              particular, when you’re -- the witness testified that the urine has
              a temperature of 102 which is virtually impossible unless the
              submitting person was running extended fever. I mean, just --
              it’s just impossible.

The court noted that the appellant had been in various rehabilitation programs over the years
and stated that there was “nothing else to do.” The trial court ordered that the appellant serve
his alternative sentences in confinement.

                                         II. Analysis

        The appellant contends that the State failed to comply with Tennessee Code
Annotated section 40-35-311(c)(1) because the State failed to introduce into evidence the
laboratory report for his drug test. The appellant also contends that the trial court abused its
discretion by revoking his alternative sentences because Richard Moggett was not the
laboratory technician who collected and analyzed the urine sample, and, therefore, the State
failed to provide substantive evidence to support the trial court’s finding that the appellant
falsified the drug test. The State argues that Tennessee Code Annotated section 40-35-
311(c)(1) does not apply in this case because the State did not seek to introduce the
laboratory test results and that the trial court did not abuse its discretion by revoking the
appellant’s alternative sentences. We conclude that the appellant is not entitled to relief.

       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 an appellant to serve the balance
of his original sentence in confinement. See Tenn. Code Ann. §§ 40-35-310 and -311(e).
Furthermore, probation revocation rests in the sound discretion of the trial court and will not
be overturned absent an abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.
2001). This court’s review of a trial court’s community corrections revocation is similar to
our review of a trial court’s probation revocation. State v. Harkins, 811 S.W.2d 79, 83
(Tenn. 1991). “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). Upon revoking probation, a trial court has the
authority to order the appellant to serve the 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).

      As noted by the State, the appellant did not raise an issue regarding the State’s failure
to comply with Tennessee Code Annotated section 40-35-311(c)(1) before the trial court.

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“Ordinarily, issues raised for the first time on appeal are waived.” State v. Alvarado, 961
S.W.2d 136, 153 (Tenn. Crim. App. 1996). In any event, section 40-35-311(c)(1) sets out
the requirements the State must follow in order to introduce a laboratory report regarding a
drug test if the lab technician who performed the test is not called to testify at the probation
revocation hearing. In this case, the State did not seek to admit the laboratory report because
Faith Farm determined that the color and temperature of the urine invalidated the test.
Therefore, we agree with the State that section 40-35-311(c)(1) was not applicable.

        We also agree that the trial court did not abuse its discretion by concluding that the
appellant’s alternative sentences should be revoked. Richard Moggett testified that the
appellant’s urine was brown and hot, which invalidated the test. Moggett could not offer an
explanation for the urine’s color and temperature but suggested that the appellant had
submitted a falsified sample. He also stated that Faith Farm’s policy was to presume that an
invalid test was “on purpose and so, we dismiss.” The trial court concluded that the appellant
had falsified the test, and we cannot say that the trial court abused its discretion. Therefore,
the trial court’s revocation of the appellant’s alternative sentences is affirmed.

                                       III. Conclusion

         Based upon the record and the parties’ briefs, we affirm the judgment of the trial
court.

                                                    _________________________________
                                                    NORMA McGEE OGLE, JUDGE




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