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        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                February 22, 2017 Session

              STATE OF TENNESSEE v. GREGORY T. PHELPS

                   Appeal from the Criminal Court for Knox County
                        No. 104306A G. Scott Green, Judge


                              No. E2016-00918-CCA-R3-CD


The Defendant, Gregory T. Phelps, appeals from the Knox County Criminal Court’s
revocation of his probation for his convictions for felony drug possession and unlawful
possession of a firearm and order that he serve his effective four-year sentence in
confinement. The Defendant contends that the trial court abused its discretion by revoking
his probation. We affirm the judgment of the trial court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR., and NORMA MCGEE OGLE, JJ., joined.

Forrest L. Wallace, Knoxville, Tennessee, for the appellant, Gregory T. Phelps.

Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney
General; Charme P. Allen, District Attorney General; and Philip Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

       On October 24, 2014, the Defendant was indicted for criminal trespass, unlawful
possession of a firearm, and felony drug possession. On July 28, 2015, the Defendant
pleaded guilty as charged to the firearm- and drug-related offenses, and he received
concurrent four-year and one-year sentences, respectively, to be served on probation. A
transcript of the guilty plea hearing is not included in the appellate record. On August 14,
2015, a probation violation report was filed with the trial court, alleging that the Defendant’s
August 5, 2015 drug screen was positive for amphetamine, methamphetamine, oxycodone,
and marijuana. The report also alleged that the Defendant admitted using marijuana and
oxycodone, that the Defendant signed an “admission form,” that the Defendant denied using
methamphetamine, and that a laboratory analysis showed the presence of amphetamine,
methamphetamine, oxycodone, oxymorphone, and marijuana. An arrest warrant for the
violation was issued on August 14, 2015. On February 3, 2016, the probation violation
warrant was amended to include additional allegations that the Defendant was arrested on
January 21, 2016, in Georgia for felony possession of a controlled substance and unlawful
possession of a firearm, that the Defendant left Tennessee without the consent of his
probation officer, and that the Defendant had not reported to his probation officer since
August 2015.

        At the revocation hearing, Cobb County Georgia Sheriff’s Deputy Tarver Mygatt
testified that on January 21, 2016, the Defendant was brought to the detention center after
being arrested for possession of a firearm while being a convicted felon. Deputy Mygatt
stated that the next day, he smelled marijuana coming from three cells and that he informed
his supervisor, Sergeant Wilson, who ordered all inmates in the housing unit to undergo a
strip search and a “shake down.”

        Deputy Mygatt testified that during the Defendant’s strip search, a plastic “baggy”
was found inside the Defendant’s rectum. Deputy Mygatt confiscated the bag and said that
based upon his training, the bag contained approximately two grams of marijuana and three
pills. He said that he took the pills to the detention center’s pharmacy and that the nurse
identified the pills as Percocet and Oxycodone. Deputy Mygatt obtained an arrest warrant
for misdemeanor possession of marijuana and for two counts of felony possession of the
prescription pain medications. He said the Defendant was not charged for introducing
contraband into a penal facility. He said the charges were still pending.

       On cross-examination, Deputy Mygatt testified that the confiscated marijuana and
pain medications were sent to the laboratory for analysis, that the analyses had been
performed, and that he did not have a copy of the laboratory report. He did not know
whether the Defendant possessed a valid prescription for the pain medication, whether any
other inmates were charged as a result of the search, or whether the Defendant had a
cellmate.

       Probation Officer Allison Joins testified that she began supervising the Defendant
around December 2015 and that a probation violation report and arrest warrant for the
violation had been prepared by that time. Ms. Joins said that Dwight Brown was the
Defendant’s previous probation officer and that Mr. Brown’s initial probation violation
report alleged the Defendant had failed a drug screen on August 5, 2015. Ms. Joins stated
that her records showed the Defendant admitted using marijuana and pain medication but
denied using methamphetamine. Ms. Joins said that a laboratory analysis report showed the
Defendant was positive for amphetamine, methamphetamine, oxycodone, oxymorphone, and
marijuana and that the failed drug screen occurred shortly after the Defendant pleaded guilty


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and received probation. She agreed her records showed that the Defendant did not report to
Mr. Brown after he failed the drug screen.

       Ms. Joins testified that she received a telephone call informing her that the Defendant
had been charged with new criminal offenses and that the Defendant was incarcerated in
Georgia. She said that sometime after January 21, 2016, the Defendant called and informed
her about the Georgia charges. She agreed the Defendant was initially charged in Georgia
with unlawful possession of a firearm and said that the Georgia warrant reflected a Georgia
address for the Defendant. She said that travel outside Tennessee without a probation
officer’s consent violated the conditions of the Defendant’s probation.

       On cross-examination, Ms. Joins testified that when she began supervising the
Defendant, he had already been classified as an absconder from probation and that she
searched monthly to determine if the Defendant had been arrested. She acknowledged she
had not called the Defendant’s last known telephone number or sent a letter to his last known
address. She said that after an arrest warrant for a probation violation was issued, she no
longer performed home visits. She said she had never met the Defendant and did not know
the address reflected on his state-issued Tennessee identification.

      On redirect examination, Ms. Joins testified that the Defendant would have signed an
admission form regarding his statement to Mr. Brown that the Defendant had used marijuana
and pain medication in August 2015. She said, though, the form was not in her file.

       The trial court found that the Defendant had violated the conditions of his probation.
The court stated that without considering the Georgia matters, the State had proved that
Defendant violated his probation because the Defendant had not reported to his probation
officer since his initial August 5 meeting and because the Defendant tested positive for
multiple controlled substances on August 5. The court found that the Defendant admitted to
Mr. Brown that he had used controlled substances and that the laboratory analysis reflected
the presence of multiple controlled substances.

       The trial court found that the Defendant had no contact with his probation officer
since August 5, 2015, and that the Defendant was extradited to Tennessee after his Georgia
arrest. The court found that even if the Defendant were found not guilty of the Georgia
firearm charge, Deputy Mygatt’s testimony reflected that the Defendant was in possession of
marijuana and pain medication after the Defendant was arrested for the firearm charge. The
court found that the Defendant violated the conditions of his release, and it revoked the
Defendant’s probation.

        In determining whether to order the Defendant to serve his sentence in confinement,
the trial court questioned defense counsel about the Defendant’s ability to comply with the

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conditions of his release in the future. Counsel stated that although the court had “every
right” to order the Defendant to serve his sentence, the Defendant’s underlying drug
addiction was the cause of the Defendant’s conduct. Counsel argued that drug treatment
programs inside the Department of Correction would not solve the Defendant’s addiction but
that the Defendant would benefit from the treatment programs inside the jail. Counsel
requested that the Defendant be permitted to enroll in the jail programs to show the court the
Defendant could maintain sobriety and that the court revisit this matter in a couple of
months.
       The Defendant told the trial court that he wanted another opportunity “to do it right.”
He admitted he “messed up.” The Defendant said, though, that he told Mr. Brown he had
used drugs but that he would pass all future drug screens because he “was getting his life
together.” He said that he did not have time to “deal with jail” and “letting [himself] down.”
 He said he would show the court he could maintain sobriety if provided an opportunity.
When the court asked why the Defendant stopped reporting to his probation officer, the
Defendant said he became nervous and scared because he did not know the impact of failing
the drug screen. Relative to the methamphetamine, he said he admitted to Mr. Brown that he
had taken “Molly” a couple of days before the drug screen, which must have been the cause
of the positive methamphetamine finding. He denied knowingly using methamphetamine.

        The trial court found that the Defendant violated the conditions of his release because
he had “an authority problem,” not a drug problem. The Defendant agreed that the court
previously instructed him to follow the rules of his release and that the probation officer’s
orders carried the same weight as an order from the court. The Defendant agreed that the
trial court also told the Defendant what it would do if the Defendant did not follow the rules
of probation.

       The trial court found that the uncontradicted evidence at the hearing showed repeated
probation violations. The court ordered the Defendant to serve his sentence in the
Department of Correction. This appeal followed.

        The Defendant contends that the evidence was insufficient to establish a probation
violation. He argues that the testimony relative to the identity of the substances found in his
rectum while in confinement in Georgia was conclusory and inadmissible hearsay and that
the trial court’s reliance on Deputy Mygatt’s testimony in revoking the Defendant’s
probation violated principles of due process. Relative to the “technical” violations of failing
a drug screen and leaving Tennessee without permission, the Defendant argues the State
failed to present Mr. Brown to establish the Defendant failed a drug screen and left
Tennessee without permission and that Ms. Joins’s testimony was inadmissible hearsay.
Relative to the firearm-related charge in Georgia, the Defendant argues that the only proof
presented was the arrest warrant and that the warrant was insufficient to establish he violated
his release by a preponderance of the evidence. The State responds that the trial court did

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not abuse its discretion by revoking the Defendant’s probation and ordering him to serve his
sentence in confinement.

       Our supreme court has concluded that a trial court’s decision to revoke a defendant’s
probation “will not be disturbed on appeal unless . . . there has been an abuse of discretion.”
State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (citing State v. Williamson, 619 S.W.2d
145, 146 (Tenn. Crim. App. 1981)). An abuse of discretion has been established when 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. Delp, 614 S.W.2d 395, 398
(Tenn. Crim. App. 1980); see State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); State v.
Grear, 568 S.W.2d 285, 286 (Tenn. 1978). When a trial court finds by a preponderance of
the evidence that a defendant has violated the conditions of probation, the court “shall have
the right . . . to revoke the probation.” T.C.A. § 40-35-311(e)(1) (2014). After revoking a
defendant’s probation, the trial court may return a defendant to probation with modified
conditions as necessary, extend the period of probation by no more than two years, order a
period of confinement, or order the defendant’s sentence into execution as originally entered.
T.C.A. §§ 40-35-308(a), (c), -310 (2014). “In probation revocation hearings, the credibility
of witnesses is for the determination of the trial judge.” Carver v. State, 570 S.W.2d 872,
875 (Tenn. Crim. App. 1978) (citing Bledsoe v. State, 378 S.W.2d 811, 814 (Tenn. 1965)).

        The record reflects that the probation violation report and the warrant alleged that the
Defendant had violated multiple conditions of his probation. The trial court found that the
Defendant violated the conditions of his probation by failing a drug screen on August 5,
2015, and by failing to report to his probation officer after the August 5 meeting. At the
revocation hearing, the Defendant told the trial court that he admitted to his original
probation officer, Mr. Brown, that he had taken drugs a couple of days before the drug screen
and that he stopped reporting to his probation officer because he knew he failed the drug
screen. The Defendant’s current probation officer, Ms. Joins, had never met the Defendant
because he had absconded from supervision before she became his probation officer in
December 2015. Furthermore, the record reflects that the Defendant’s traveling outside
Tennessee was not approved by any probation officer, and Ms. Joins’s credited testimony
reflects that the Defendant’s presence in Georgia was a violation of his release. We note that
reliable hearsay is admissible at probation revocation hearings when the opposing party has a
fair opportunity to rebut any hearsay evidence. See T.C.A. § 40-35-209(b); State v. Wall,
909 S.W.2d 8, 10 (Tenn. Crim. App. 1994). The Defendant confirmed that he failed the drug
screen and that he failed to report to his probation officer. See T.C.A. § 40-35-209(b); Wall,
909 S.W.2d at 10. This evidence alone was sufficient to support the trial court’s finding that
the Defendant had violated his probation. We note that the trial court found the Defendant
violated his probation regardless of the Georgia matters.




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        In any event, the evidence also supports a finding that the Defendant committed a new
criminal offense by possessing a controlled substance while inside a Georgia detention
facility. Deputy Mygatt’s credited testimony reflects that he smelled marijuana inside the
Defendant’s housing unit, that Deputy Mygatt was ordered to strip search all of the inmates
in the housing unit, and that Deputy Mygatt found a bag inside the Defendant’s rectum.
Deputy Mygatt stated that based upon his training, he believed the bag contained marijuana
and that the bag also contained three pills, which he could not identify. See State v. White,
269 S.W.3d 903, 906-907 (Tenn. 2008). Deputy Mygatt’s testimony that the detention
center nurse identified the pills and that a firearm-related charge led to the Defendant’s
Georgia incarceration notwithstanding, the evidence is sufficient to support a finding that the
Defendant violated the conditions of his probation by possessing marijuana. Although a
laboratory analysis of the substance was not presented at the hearing, the State was required
to prove by a preponderance of the evidence, not beyond a reasonable doubt, that the
Defendant violated the law. See Harkins, 811 S.W.2d at 83; see also State v. Catherin
Vaughn, No. M2009-01166-CCA-R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim. App. June
14, 2010); State v. Andrew B. Edwards, No. W1999-01095-CCA-R3-CD, 2000 WL 705309,
at *3 (Tenn. Crim. App. May 26, 2000). The State satisfied its burden by showing the
Defendant possessed marijuana, and the Defendant’s due process rights were not violated.

       We conclude that the record supports the trial court’s finding that the Defendant
violated the conditions of his probation and that the court did not abuse its discretion by
revoking the Defendant’s probation. See T.C.A. § 40-35-311(e)(1). Once the court revoked
the Defendant’s probation, it had the authority to order the Defendant to serve his sentence in
confinement. See T.C.A. §§ 40-35-308(a), (c), -310. We note that during the sentencing
hearing, defense counsel conceded that the trial court had “every right” to order the
Defendant to serve his sentence in confinement. The Defendant is not entitled to relief.

         Based on the foregoing and the record as a whole, we affirm the judgment of the trial
court.




                                             _____________________________________
                                             ROBERT H. MONTGOMERY, JR., JUDGE




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