        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs October 19, 2010

        STATE OF TENNESSEE v. RACARDO ARNETTE SPENCER

                 Appeal from the Criminal Court for Davidson County
                    No. 2006-A-630 J. Randall Wyatt, Jr., Judge




               No. M2009-02606-CCA-R3-CD - Filed January 11, 2011


The Defendant, Racardo Arnette Spencer, appeals as of right from the Davidson County
Criminal Court’s revocation of his community corrections sentence and order of
incarceration. The Defendant contends that the trial court erred in revoking his community
corrections sentence because there was no substantial evidence to determine that the
Defendant had violated the terms of his sentence. Following our review, we affirm the trial
court’s revocation of the Defendant’s community corrections sentence.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which D AVID H. W ELLES and
T HOMAS T. W OODALL, JJ., joined.

Michael A. Colavecchio, Nashville, Tennessee, for the appellant, Racardo Spencer.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Ben Ford, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

       The Defendant was indicted for possession with intent to sell or deliver .5 grams or
more of a Schedule II controlled substance, a Class B felony. On October 13, 2008, the
Defendant pled guilty to possession with intent to sell or deliver less than .5 grams of a
Schedule II controlled substance, a Class C felony, and received a sentence of six years,
suspended to community corrections. The Defendant was ordered to serve the sentence in
this case consecutively to a sentence he received in an unrelated case. On September 21,
2009, a violation warrant was filed in which it was alleged that the Defendant had violated
the conditions of his community corrections sentence by committing a new offense and being
in possession of a firearm in violation of the terms of his release.

        A community corrections violation hearing was held on October 29, 2009, at which
Officer Kevin Cooley of the Nashville Police Department testified. Officer Cooley testified
that on September 19, 2009, he and Officer Ryan Finnigan were “patrolling a high drug and
crime area” when they encountered the Defendant and another man walking toward their
vehicle. Officer Finnigan told Officer Cooley that the “men were fiddling with something
in their pockets” or around their “waistband.” Based upon Officer Finnigan’s observation,
Officer Cooley decided to stop and speak with the individuals. As they were getting out of
the police vehicle, the unidentified man ran. The Defendant did not run but walked at a fast
pace in the same direction as the unidentified man. Officer Finnigan ran after the
unidentified man, while Officer Cooley followed the Defendant.

       The Defendant turned into a driveway, walked in front of a parked sport utility
vehicle, ducked down under the vehicle, and then “popped right back up.” Officer Cooley
approached the Defendant, handcuffed him, and placed him in the patrol car. Officer Cooley
went back to the sport utility vehicle and discovered a semi-automatic pistol under the
vehicle. The weapon was loaded. According to Officer Cooley, the weapon was warm to
the touch as if someone had been holding it close to their body. Additionally, the gravel
under the vehicle did not appear as if it had been disturbed by someone throwing or sliding
the weapon underneath the vehicle. Other than the unidentified man that fled past the
vehicle, there were no other people in the area at that time. After finding that the Defendant
had an extensive criminal record, the Defendant was charged with possession of a weapon
by a felon but had been bound over to the grand jury but not convicted at the time of the
hearing.

        Alford Moore, Jr. of the Davidson County Community Corrections Program testified
that he was the Defendant’s supervising officer. He stated that he filed a violation warrant
in the Defendant’s case because the Defendant had been charged with being a felon in
possession of a weapon. Additionally, the Defendant violated rule 16 of the community
corrections program in that he was found to be in possession of a weapon. Mr. Moore stated
that the Defendant had been informed that he was not allowed to possess weapons while
serving his sentence on community corrections. The Defendant came to the office after his
arrest and told Mr. Moore that he had been arrested. According to Mr. Moore, the Defendant
came to the office prepared to be arrested again. Mr. Moore testified that the Defendant was
not the “perfect probationer” but that they “were working towards keeping him somewhat
in compliance.” The Defendant had tested positive for cocaine and marijuana on May 16,
2009; however, Mr. Moore, with the court’s permission, opted for more intensive drug
treatment instead of filing a violation warrant.

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        Minister Ricky Waller of the Lighthouse Mission testified on behalf of the Defendant.
Minister Waller testified that he spoke with the Defendant at a tent revival and that the
Defendant told him that he really wanted to change his life. Minister Waller stated that he
really believed that “[w]ith a chance,” the Defendant will “stand firm.”

       Following the revocation hearing, the trial court accredited the testimony of Officer
Cooley and found that “the only logical explanation for the gun’s presence there or for the
Defendant ducking behind the vehicle was because the Defendant was trying to dispose of
this gun before he could be searched.” The court concluded that the Defendant’s extensive
criminal history compelled the court to “take stronger actions” against the Defendant and that
the Defendant’s “actions require the [c]ourt to revoke the privileges of [community
corrections].”

                                         ANALYSIS

       The Defendant contends that there is no substantial evidence to support the trial
court’s decision to revoke his community corrections sentence. The State responds that the
record supports the trial court’s decision to revoke the Defendant’s community corrections
sentence and order the Defendant to serve his sentence in confinement.

       The decision to revoke a community corrections sentence rests within the sound
discretion of the trial court and will not be disturbed on appeal unless there is no substantial
evidence to support the trial court’s conclusion that a violation occurred. State v. Harkins,
811 S.W.2d 79, 82-83 (Tenn. 1991). Pursuant to Tennessee Code Annotated section 40-35-
311(e), the trial court is required only to find that the violation of a community corrections
sentence occurred by a preponderance of the evidence. In reviewing a trial court’s findings,
this court must examine the record and determine whether the trial court has exercised a
conscientious judgment rather than an arbitrary one. State v. Mitchell, 810 S .W.2d 733, 735
(Tenn. Crim. App. 1991). Once there is sufficient evidence to establish a violation of a
community corrections sentence, the trial court has the authority to revoke the community
corrections sentence. Tenn. Code Ann. § 40-36-106(e). The trial court may then “resentence
the defendant to any appropriate sentencing alternative, including incarceration, for any
period of time up to the maximum sentence provided for the offense committed, less any time
actually served in any community-based alternative to incarceration.” Tenn. Code Ann. §
40-36-106(e)(4).

      Criminal conduct that is the basis of pending charges may serve as the basis for a
revocation of a community corrections sentence. State v. Andrew B. Edwards, No. W1999-
01095-CCA-R3-CD, 2000 WL 705309, at *3 (Tenn. Crim. App. May 26, 2000), perm. app.
denied (Tenn. Sep. 11, 2000). However, the trial court cannot rely solely on the mere fact

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of an arrest or an indictment. Harkins, 811 S.W.2d at 83. Instead, the State must provide
evidence “in order to establish the . . . commission of another offense.” Id. The trial court
must be presented with some evidence “to establish that the defendant committed the offense
with which he has been charged.” State v. Lontrell Williams, No. W2009-00275-CCA-R3-
CD, 2009 WL 3518171 at *3 (Tenn. Crim. App. Oct. 30, 2009). The evidence may take the
form of live testimony from the arresting officer. See State v. Walter Lee Ellison, No.
01C01-9708-CR-00361, 1998 WL 272955 (Tenn. Crim. App. May 29, 1998).

        The trial court accredited the testimony of Officer Cooley concerning the Defendant’s
possession of the weapon and concluded that the Defendant had committed the offense and
had violated the conditions of his community corrections sentence. The record supports the
trial court’s decision to revoke the community corrections sentence and to order the sentence
served in confinement. We conclude that the trial court exercised a conscientious judgment
in arriving at its determination. Accordingly, the trial court’s decision to revoke the
Defendant’s community corrections sentence is affirmed.

                                      CONCLUSION

        In consideration of 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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