            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                            Assigned on Briefs September 25, 2001

    STATE OF TENNESSEE v. MARY JANE BURCHFIELD McMAHAN 1

                    Direct Appeal from the Criminal Court for Blount County
                           No. C-11083    D. Kelly Thomas, Jr., Judge



                                    No. E2000-03156-CCA-R3-CD
                                          October 26, 2001

The defendant appeals the trial court’s revocation of her probation. After a thorough review of the
record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and ALAN E.
GLENN, JJ., joined.

Steve McEwen, Mountain City, Tennessee (on appeal); Raymond Mack Garner, District Public
Defender; and George H. Waters, Assistant District Public Defender (at hearing), for the appellant,
Mary Jane Burchfield McMahan.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;
Michael L. Flynn, District Attorney General; and William R. Reed, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                                 OPINION

                                             BACKGROUND

         The defendant originally pled guilty on July 1, 1999, to introducing contraband into a penal
institution for an agreed sentence of four years probation. On October 31, 2000, the defendant pled
guilty to a probation violation and was ordered to serve 55 days incarceration, with the remainder
of the sentence on probation upon the successful completion of a drug treatment program to be
attended daily on a furlough. On November 3, 2000, upon returning from furlough, the defendant



        1
         The defendan t is referred to in various pleadings as Mary Jane McMahan, Mary Jane McMahan Burchfield,
and Mary Jane Burchfield McM ahan.
failed a drug screen. The trial court subsequently conducted an evidentiary hearing and revoked the
defendant’s probation. This appeal followed.


                                   PROBATION REVOCATION

A. Standard of Review

        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 person has violated a condition of probation.
Tenn. Code Ann. §§ 40-35-310, -311. The decision to revoke probation rests within the sound
discretion of the trial court. State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991).
Revocation of probation is subject to an abuse of discretion standard of review, rather than a de novo
standard. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Discretion is abused only if the record
contains no substantial evidence to support the conclusion of the trial court that a violation of
probation has occurred. Id.; State v. Gregory, 946 S.W.2d 829, 832 (Tenn. Crim. App. 1997).

B. Testimony at Hearing

       Stacy Lawhorn, a nurse practitioner with the Blount County Sheriff’s Department, testified
she conducted a drug screen on the defendant on November 3, 2000. She further stated the
defendant failed the screen, testing positive for morphine and benzodiazepines. Lawhorn inquired
from the defendant if she had used drugs, and the defendant stated she had taken prescription drugs,
as authorized by her doctor at the drug treatment center.

       Lawhorn then submitted a biologic specimen taken from the defendant to a laboratory for
confirmation. She testified the results of the laboratory test confirmed her initial results. Upon
defense objection, however, the trial court ruled the written copy of the lab results was inadmissible.

         The defendant did not testify or offer any proof.

         The transcript of the hearing reveals that the following occurred at the conclusion of the
proof:

                   The Court: To be fair to Ms. Burchfield, I want to find out if what she told
         the nurse practitioner is true or not; that being that the doctor at the treatment center
         . . . told her to fill her prescriptions. If that is the case, then I’m going to allow Ms.
         Burchfield to be released and serve this sentence out on probation . . . .

                 If that is not true, then she may not get out on probation.

                So, in the interest of time, could we see – possibly call over at the Lighthouse
         and see if there is anyone there who could maybe give us a definitive answer to that


                                                    -2-
       question? If we need to go through the formal channels, we’re going to have to wait
       till–

             [Prosecutor] Reed: Ms. Lawhorn has indicated she has access and has a
       good way to do that, so I recommend the Court allowing her to do that.

               The Court: Do you have a suggestion?

              [Defense Counsel] Waters: Well, just that I’d like to be able to talk to the
       person, too.

               The Court: Sure, you can.

               Mr. Waters: And I think then we would not have the hearsay problem and
       –

               The Court: You all three can go and do it and speak with the people.

               Mr. Reed: I’ll let Ms. Lawhorn be my proxy, if you don’t mind.

               The Court: That’s fine. And if you locate a person that can tell you, then
       after they tell you, they can tell Mr. Waters, would be fine . . . . Send a court officer
       after me as soon as you all find out something.

              (Whereupon, court concluded for the day. In regard to this case, no other
       proceedings were held on this day.)

         Unfortunately, nothing further appears in the record relating to efforts to ascertain whether
the defendant was told to take this medication. The next thing appearing in the record is the order
of the trial court revoking probation. The order makes no express reference to whether or not the
defendant had been told to take the medication.

C. Analysis

       The trial court had sufficient evidence before it to conclude by a preponderance of the
evidence that the defendant violated probation by taking the unauthorized controlled substances.
Stacy Lawhorn testified the drug screen she personally conducted revealed the presence of morphine
and benzodiazepines. This testimony alone was sufficient to establish the violation, regardless of
the inadmissibility of the subsequently obtained laboratory report. Furthermore, the defendant
admitted to Lawhorn that she had taken these controlled substances. The defendant’s argument on
appeal that this admission was in violation of Miranda is waived due to the failure to object at the
hearing. State v. Thompson, 36 S.W.3d 102, 108 (Tenn. Crim. App. 2000).



                                                 -3-
        The defendant did not testify at the revocation hearing. Nevertheless, the trial court in order
“to be fair” gave the defendant the opportunity to establish that she was told by the doctor at the
treatment center that she could take these drugs. However, the record is silent as to any evidence in
this regard. The trial court’s order revoking probation implicitly recognized that no such proof was
presented. If such evidence was presented to the trial court, the failure to include it in the record
waives the issue and allows us to presume that the ruling of the trial court was correct. State v.
Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).


                                          CONCLUSION

       The record supports the revocation of probation. We affirm the judgment of the trial court.



                                                       ___________________________________
                                                       JOE G. RILEY, JUDGE




                                                 -4-
