        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT NASHVILLE             FILED
                              JULY SESSION, 1998         October 13, 1998

                                                      Cecil W. Crowson
STATE OF TENNESSEE,             )                   Appellate Court Clerk
                                     C.C.A. NO. 01C01-9707-CC-00290
                                )
      Appellee,                 )
                                )
                                )    MAURY COUNTY
VS.                             )
                                )    HON. JAMES L. WEATHERFORD
JOHNNY DAVIDSON,                )    JUDGE
                                )
      Appe llant.               )    (Direct Ap peal)




FOR THE APPELLANT:                   FOR THE APPELLEE:

JOHN E. HERBISON                     JOHN KNOX WALKUP
2016 E ighth Ave nue So uth          Attorney General and Reporter
Nashville, TN 37204
                                     TIMOTHY F. BEHAN
                                     Assistant Attorney General
                                     425 Fifth Avenu e North
                                     Nashville, TN 37243-0493

                                     MIKE BOTTOMS
                                     District Attorney General

                                     WILLIAM C. BRIGHT
                                     Assistant District Attorney
                                     809 South Main Street
                                     Suite 200
                                     Columbia, TN 38401



OPINION FILED ________________________

AFFIRMED

JERRY L. SMITH, JUDGE
                                    OPINION

       On August 14 , 1996, th e Appe llant, John ny David son, plea ded gu ilty to

four counts of selling cocaine, one count of selling marijuana, and one count of

evading arrest. As a result, the Appellant received an effective sentence of

twelve years unsupervised probation with the special condition that the Appellant

contact the judge or his probation officer before re-entering the State of

Tennessee. On May 9, 1997, the trial court re voked his pro bation . On ap peal,

the Appellant raises the following issues for review:



       1) whether the trial c ourt co rrectly re voked the Ap pellan t’s probation after
       law enforcement officers found cocaine on the Appellant’s person;
       2) whether the Appellant’s presence in the State of Tennessee provided
       sufficient grounds for revocation, even though the trial court did not rely on
       this fact in revoking his probation.


After a revie w of the re cord, we affirm the ju dgme nt of the trial co urt.



                                        FACTS




       At the probation revocation hearing, Howard Mangrum of the Ma ury Cou nty

Sher iff’s Department testified that on March 9, 1997, he was working security for

Maury Regional Hospital when the Appellant was brought in for treatment of a

gunshot wound. When Mr. Mangrum entered the emergency room, he noticed

that the Appellant was clutching a bag in his hand. The Appellant was holding

the bag in a tight grip, and Mr. Mangru m wa s initially unable to pry his fingers

open. Mr. Mangru m testified that at this time, the Appellant wa s “just lying there

motionless.” After Mr. Mangrum removed the bag from th e App ellant’s grip, he



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noticed that it appeared to contain crack cocaine. Th e contents of the bag were

later identified as coca ine base .



       Kianna Mostella, a friend of the Appellant, testified that she was with the

Appellant when he was shot and that she did no t see a ny dru gs in his possession

at that time. In additio n, the A ppella nt testifie d that h e did not ha ve any drugs in

his posse ssion wh en he w as sho t and that h e was u ncons cious at the time he

was bro ught to the hospital e merge ncy room .



       At the revocation hearing, the State argued that the Appellant’s probation

shou ld be revoked because he had entered the State of Tennessee without

permission and because he was found with coca ine in his po ssessio n.                 In

revoking the Appellant’s probation, the trial court relied on the fact that the

Appellant had been found with co caine in his possession and not on the fact that

he had been present in the State of Tennessee. The trial court stated:



       On this pro vision a bout le aving th e state , now th at -- in other words, I
       would n’t feel comfortable in just ord ering som ebody to leave the state. I
       wouldn’t, unde r these circum stances wh ere he says he came to help out
       his grandmother who was sick at the tim e. I wouldn ’t revoke him on that.
       As far as th e coc aine in his hand , that’s s ufficien t for me . I’m satisfied by
       the preponderance of the evidence that he possessed this cocaine, crack
       cocaine, and I’m going to revoke his probation and his sentence, twe lve
       year sen tence, w ill be served .


                            POSSESSION OF COCAINE




       The Appellant contends that the trial court erred in revoking his probation

because he was unconscious at the time he was found in possession of the

cocaine and because there is no proof that he knowingly or intentionally

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possessed cocaine. Specifically, the Appellant contends that abse nt proof o f a

culpa ble menta l state, there is no evide nce tha t his cond uct was criminal and

thus, no basis for revoking his probatio n.      The circumstances upon which

probation can be revoked are specified in Tennessee Code Annotated § 40-35-

311(d):



      If the trial ju dge s hould find that the Appellant has violated the conditions
      of probation and suspension by a preponderance of the evidence, the trial
      judge shall ha ve the r ight by o rder du ly enter ed up on the minutes of the
      court, to revoke the probation and suspension of sentence and cause the
      Appellant to com men ce the execu tion of th e judg men t as orig inally
      entered, or otherw ise in acco rdance with § 40-3 5-310; p rovided, that in
      case of such revocation of probation and suspen sion, the Appellant has
      the righ t to app eal.


Tenn. Code Ann. § 40-35-311(d) (1997). The Tennessee Supreme Court has

stated that under this section:



      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. 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 judg e that a
      violation of the conditions o f probation has occ urred. T he proo f of a
      probation 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 jud gmen t.


State v. Harkins, 811 S.W.2d 79, 82 (T enn. 19 91). Thus , “[t]he revoca tion of a

suspended sente nce is c omm itted to th e sou nd judicial discretion of the trial

judge, and h is decis ion on the m atter w ill not be revers ed on appe al unle ss it

appears that the trial judge has acted arbitrarily in the ma tter.”         State v.

Williamson, 619 S.W.2d 145, 146 (Tenn. Crim. App. 1981) (citing Finley v. Sta te,

214 Ten n. 149, 378 S .W.2d 169 (1964 )).


                                         -4-
         In this case, there was sufficient evidence for the trial court to revoke the

Appe llant’s probation under Tennessee Code Annotated § 40-35-311 for violating

the condition s of prob ation. Inde ed, “[u]nd er this sec tion, compliance with our

state laws is an autom atic condition . . . .” State v. Stub blefield , 953 S.W.2d 223,

225 (Tenn. Crim. A pp. 199 7). There was su fficient eviden ce for the tria l court to

find that the Appellant had violated the conditions of his probation by possessing

cocaine.1 Mr. Mangrum testified that the Appellant had a bag of cocaine in his

hand and that he would not let go of the bag. In fact, Mr. Mangrum testified that

the Appe llant initia lly had such a tight grip on the bag that he w as unable to p ry

the Appellant’s fingers open. Further, Mr. Mangrum never testified that the

Appellant was un conscio us at the time he was holding the bag, only that the

Appellant was “ju st lying there motionless.” It is a reasonable interpretation of

this evidence that the Appellant could not have been gripping the bag of cocaine

so tightly without intentionally holding the bag at some point. While this evidence

may or may not have been strong enough to convict the Appellant of a criminal

offense is not the tes t. “The evid ence n ecessa ry to order a revocation of a

suspended sentence does not require the quantum of proof necessary to convict

one of a crime in the first instanc e.” Bledso e v. State, 215 Tenn. 553, 560, 387

S.W.2d 811, 81 4 (1965 ); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App.

1980).



         It is true that both the Appellant and his friend, Ms. Mostella, testified that

the Appellant did no t have a ny dru gs in his possession at the time he was shot

and that the Appellant testified that he was unconscious when he was holding the


         1
        It is a violation of Tennessee law to knowingly possess a controlled substance. Tenn. Code Ann.
§ 39-17-418 (1997). Cocaine is a Schedule II controlled substance. Tenn. Code Ann. § 39-17-408(4)
(1997).

                                                -5-
bag of cocain e. However, the trial court was free to decide how m uch we ight to

give this testimony. Indeed, “[i]n probation revocation hearings, the credibility of

the witnesses is for the determ ination of the trial judge.” State v. W all, 909

S.W.2d 8, 10 (Tenn. Crim. App. 1994) (citing Bledsoe v. State, 387 S.W.2d 811,

814 (Tenn .1965); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App .1980)).

Thus, the trial court was free to disre gard th is testim ony as well as the resulting

inference that someone else placed the cocaine in the Appellant’s hand after he

became unconscious.



       Because we find that the re was subs tantial evidence to support the trial

court’s conclusion that the Appellant had violated the conditions of his probation,

we hold that the trial cou rt did no t abus e its disc retion b y revok ing the Appe llant’s

probation.



         APPELLANT’S PRESENCE IN THE STATE OF TENNESSEE




       The Appellant also contends that the condition of his probation that he

leave the Sta te of T enne ssee during the period of his proba tion was impro per.

Howeve r, because the trial court did not rely on this con dition in revokin g his

probatio n, we ne ed not a ddress this argum ent.



       Accordingly, the judgment of the trial court is AFFIRMED.



                                    ____________________________________
                                    JERRY L. SMITH, JUDGE




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CONCUR:



___________________________________
PAUL G. SUMMERS, JUDGE


___________________________________
DAVID G. HAYES, JUDGE




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