         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                          Assigned on Briefs November 12, 2008

                STATE OF TENNESSEE v. KEVIN B. THOMPSON

                       Appeal from the Circuit Court for Hardin County
                           No. 8470    C. Creed McGinley, Judge



                  No. W2008-00832-CCA-R3-CD - Filed February 10, 2009


The defendant, Kevin B. Thompson, appeals from the Hardin County Circuit Court’s probation
revocation for his two-year effective sentence for his guilty pleas to violation of a motor vehicle
habitual offender order, a Class E felony, and violation of the registration law, a Class C
misdemeanor. He claims that the trial court erred in revoking his probation and ordering him to
serve his sentence in incarceration. We hold that the trial court did not abuse its discretion, and we
affirm its judgment.

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

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which ALAN E. GLENN and D. KELLY
THOMAS, JR., JJ., joined.

Guy T. Wilkinson, District Public Defender, and Richard W. DeBerry, Assistant District Public
Defender, for the appellant, Kevin B. Thompson.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Hansel Jay
McCadams, District Attorney General; and Eddie N. McDaniel, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                             OPINION

         The defendant was ordered to serve 120 days of his sentence in jail and the remaining one
year and eight months on probation. While he was on probation, his probation officer requested that
the trial court issue a violation warrant. Among the charges alleged were that the defendant had
failed multiple drug screens, failed to follow the instructions of his probation officer to obtain drug
treatment, made verbal threats to his probation officer, and violated the law as evidenced by a new
conviction of possession of a Schedule IV controlled substance.

        At the revocation hearing, Emily Ammons, the defendant’s probation officer, testified that
the defendant had tested positive for drugs on three occasions. She said that two of these instances
were before she filed the violation warrant and that the defendant tested positive for marijuana and
cocaine on both occasions. She said the defendant was convicted of simple possession during his
probation. She said the defendant had also “[e]ngaged in intimidating behavior toward his probation
officer.” She said that she told the defendant to get some drug treatment and that although the
defendant professed to be making efforts to obtain treatment, he never provided any documentation
of his efforts. She said she wanted the defendant to go to inpatient treatment due to his use of
multiple controlled substances.

        The defendant testified that he went to outpatient treatment and that he thought he had
provided Ms. Ammons with documentation. He was unable, however, to state the number of times
he had attended outpatient treatment. He said that he had placed himself on a waiting list for the
Jack Jean Shelter and that he had contacted Teen Challenge. He said he did not continue to pursue
inpatient treatment because Ms. Ammons advised him that his probation was going to expire soon.
He said that for this reason, he did not consider inpatient treatment at the time but that he was willing
to do so if the court would extend his probation. He admitted that he had a problem with marijuana,
which he called his “drug of choice,” and he admitted that he had used both marijuana and cocaine
during his probation. He acknowledged that he had a pending domestic violence charge in General
Sessions Court but stated that it would be dismissed if he went to an anger management program.
He said he intended to address his anger management issues.

        The trial court found that the defendant had violated the terms of his probation through
continued drug use. The court noted the defendant’s positive drug screens and his new conviction
for drug possession. The court observed that the defendant had not been interested in long-term drug
treatment until he was “under the gun” and found that the defendant had made little effort to
rehabilitate himself. Based upon these findings, the court ordered that the defendant’s probation was
revoked and that he was to serve his sentence in the Department of Correction.

        The defendant argues in this appeal that the trial court should not have imposed service of
the entire sentence upon finding that the defendant was in violation of his probation. Relative to
when a trial court may revoke probation and to the standard of review in an appeal of such an action,
in State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991), our supreme court stated:

                We take note that a trial judge may revoke a sentence of probation or
                a suspended sentence upon a finding that the defendant has violated
                the conditions of his probation or suspended sentence by a
                preponderance of the evidence. T.C.A. § 40-35-311. The judgment
                of the trial court in this regard will not be disturbed on appeal unless
                it appears that there has been an abuse of discretion. State v.
                Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981). In order
                for a reviewing court to be warranted in finding an abuse of discretion
                in a probation revocation case, it must be established that the record
                contains no substantial evidence to support the conclusion of the trial
                judge that a violation of the conditions of probation has occurred.
                State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614
                S.W.2d 395, 398 (Tenn. Crim. App. 1980). The proof of a probation


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               violation need not be established beyond a reasonable doubt, but it is
               sufficient if it allows the trial judge to make a conscientious and
               intelligent judgment. State v. Milton, 673 S.W.2d 555, 557 (Tenn.
               Crim. App. 1984).

        Upon consideration, we hold that the trial court’s determination that the defendant had
violated the terms of probation was supported by substantial evidence and that the trial court did not
abuse its discretion in revoking his probation and ordering him to serve his sentence in prison. By
his own admission, the defendant violated the terms of his probation on multiple occasions.
Moreover, the evidence supports the trial court’s determination that the defendant’s efforts at
rehabilitation were unsatisfactory.

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is affirmed.



                                                       ___________________________________
                                                       JOSEPH M. TIPTON, PRESIDING JUDGE




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