                                                                                         09/05/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 7, 2017

   STATE OF TENNESSEE v. ERIC WASHINGTON aka ERIK BROCK

                 Appeal from the Criminal Court for Shelby County
                  No. 14-05910       Carolyn W. Blackett, Judge
                     ___________________________________

                           No. W2016-00669-CCA-R3-CD
                       ___________________________________

Defendant, Eric Washington, appeals from the trial court’s revocation of probation for his
convictions for aggravated assault, domestic assault, and vandalism under $500 and order
that he serve his effective ten-year sentence in confinement. Defendant contends that the
trial court abused its discretion by allowing hearsay testimony at the revocation hearing
and that the evidence was insufficient to support the revocation. Upon our review of the
record, we hold that the trial court erred by admitting hearsay testimony without a finding
of good cause or reliability and that the trial court erred in revoking Defendant’s
probation on a ground for which there was a lack of evidence in the record. Accordingly,
we reverse the judgment of the trial court and remand the matter for further proceedings
consistent with this opinion.

                      Tenn. R. App. P. 3 Appeal as of Right;
              Judgment of the Criminal Court Reversed and Remanded

THOMAS T. WOODALL, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN, and J. ROSS DYER, JJ., joined.

Seth M. Segraves, Memphis, Tennessee, for the appellant, Eric Washington.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Megan Fowler, and
Cavet Ostner, Assistant District Attorneys General, for the appellee, State of Tennessee.

                                       OPINION

Facts

     A transcript of the guilty plea hearing is not included in the appellate record.
However, we glean the following facts from the record. On November 18, 2014,
Defendant was indicted for aggravated assault, domestic assault, and vandalism under
$500. He entered open guilty pleas to the charges, and the trial court imposed a sentence
of ten years for his aggravated assault charge and 11 months and 29 days on each of the
other two charges. The trial court suspended Defendant’s sentences and ordered him to
serve ten years on probation, including participation in the Jericho Project. On December
12, 2015, Defendant’s probation officer filed an affidavit alleging that Defendant violated
probation by incurring new criminal charges and behaving in an assaultive, abusive,
threatening, and intimidating manner. The State also filed a petition for revocation of a
suspended sentence, noting that Defendant had violated the law and had not abided by all
of the Jericho Project conditions.

      At the revocation hearing, Jacorien White, Defendant’s probation officer, testified
that Defendant was placed on probation on August 4, 2015. Ms. White testified that
Defendant had not abided by the conditions of his probation and that he had been arrested
and charged with aggravated burglary and domestic assault. She also noted that
Defendant could no longer participate in the Jericho Project because he was incarcerated.

        On October 6, 2015, Officer Pedro Torres, of the Memphis Police Department,
responded to a report of a burglary and aggravated assault. Officer Torres and his partner
met Olivia Jones, the alleged victim, at a gas station and followed her to her apartment.
When they arrived at the apartment, Officer Torres observed damage to the doorframe
and the lock. He testified that the door “appeared to have been kicked in.” Officer
Torres testified that Ms. Jones told him that her current boyfriend, Defendant, had kicked
in her door. Officer Torres downloaded Defendant’s picture onto his PDA and showed it
to Ms. Jones, and she identified Defendant as the person who kicked in her door. Officer
Torres testified that Ms. Jones received a phone call from Defendant while he was at the
apartment. Ms. Jones stated, “‘[t]his is him’” when she received the phone call. She
talked to Defendant on speakerphone so the officers could hear. Officer Torres heard the
caller “apologize[ ] for kicking in the door, and he said repeatedly, ‘Don’t call the police.
. . . I’m going to fix the door.”

       Officer Torres testified that Ms. Jones completed an “Offer of Transportation and
Hold Harmless” form in which she stated that she was taking a bath, and she heard
Defendant knocking and shouting at the front door. She was getting dressed when she
heard Defendant kick in her front door and accuse her of seeing another man. She told
Officer Torres that Defendant picked up “a small kitchen knife,” but that he did not
threaten her with it, and Defendant dropped the knife “during the struggle.” Ms. Jones
told Officer Torres that Defendant pushed her down.

      On cross-examination, Officer Torres testified that he had never spoken to
Defendant and acknowledged that he could not identify Defendant’s voice on the phone.
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Officer Torres acknowledged that he did not find any other evidence, aside from “[j]ust
what Ms. Jones told me[,]” that Defendant had kicked in the victim’s door or been inside
her apartment.

       Defendant called Sergeant Alisa Styles, a record keeper for the Shelby County
Sheriff’s Office, to testify that Ms. Jones visited Defendant in jail on December 23, 2015,
and on February 17, 2016.

       At the conclusion of the hearing, the trial court concluded that Defendant violated
the conditions of his probation because “the bottom line was, is that, if he picked up any
charges whatsoever, it’s a clear violation of the Jericho Project.”

Analysis

      On appeal, Defendant argues that the trial court erred by admitting unreliable
hearsay and that the evidence was insufficient to support the revocation of probation.
The State responds that the trial court did 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). 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. In reviewing the trial court’s findings, it is our obligation to 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).

       Defendant complains that the revocation hearing “was littered with the hearsay
statements of the alleged victim . . . [including] the identity of the alleged attacker, the
identity of a declarant who called the alleged victim’s phone, the statements of the
declarant on the phone, and a narrative of the alleged attack.” Defendant argues that the
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trial court improperly allowed Officer Torres to testify to hearsay without making a
determination as to its reliability and whether there was good cause to allow it into
evidence.

        Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Typically, hearsay is not admissible. Id. at 802. Also,
an accused has a constitutional right to confront adverse witnesses. U.S. Const. Amend.
VI; Tenn. Const. Art I, § 9. This court has previously held that a defendant facing
revocation of a suspended sentence, such as probation or community corrections, “may
not be subject[ed] to revocation upon evidence which they have had no opportunity to
hear, test by cross-examination or refute by contrary evidence.” Stamps v. State, 614
S.W.2d 71, 74 (Tenn. Crim. App. 1980). However, because “the issue in a probation
revocation proceeding is not the guilt or innocence of the defendant, the right to confront
and cross-examine adverse witnesses is not absolute and may be relaxed under certain
circumstances.” State v. Wade, 863 S.W.2d 406, 407 (Tenn. 1993).

       A trial court can admit hearsay evidence at a probation hearing after making a
finding as to why the information is reliable and whether good cause justifies the denial
of the defendant’s right to confront and cross-examine adverse witnesses. See Wade, 863
S.W.2d at 408; see also State v. David James Wiley, No. E2004-01463-CCA-R3-CD,
2005 WL 1130222, at *2 (Tenn. Crim. App. May 13, 2005), no perm. app. filed.

        The record reflects that defense counsel made several objections to Officer Torres’
testimony regarding Ms. Jones’ statements to him as unreliable hearsay. The State
argued that reliable hearsay is admissible in a probation revocation proceeding and cited
this court’s opinion in State v. Roy Cherry, No. W2015-01084-CCA-R3-CD, 2016 WL
520304 (Tenn. Crim. App., Nov. 3, 2015), perm. app. denied (Tenn., Feb. 8, 2016). In
that case, the defendant pleaded guilty to several offenses, and the trial court placed him
on judicial diversion. Id. The State filed a petition to revoke his diversion following the
defendant’s arrests for aggravated assault and domestic assault. At the revocation
hearing, the prosecutor informed the trial court that the victim of the aggravated assault
had been subpoenaed and had been in court earlier that day but had since left. Id. The
trial court heard testimony from the officer who responded to a domestic assault call.
The officer testified that the defendant’s girlfriend told him that the defendant had choked
her, and the officer observed marks on the victim’s neck. Id. The officer also spoke to
the defendant at the scene, and the defendant denied choking the victim, but admitted
ripping the victim’s jacket off. Id. The trial court revoked the defendant’s diversion,
finding by a preponderance of the evidence that the defendant had violated the terms and
conditions of diversion. Id. A panel of this court held that, “although the trial court did

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not make a specific finding of ‘good cause’ for the admission of the officers’ hearsay
testimony, such a finding was implicit in the trial court’s words and actions.” Id. at *3.

        In the case sub judice, the prosecutor informed the court at the revocation hearing
that the victim could not be located. The State argued that Officer Torres’ testimony was
reliable because he observed damage to her door. On appeal, the State argues that the
trial court’s findings that Officer Torres’ testimony was reliable and that the State had
established good cause for Ms. Jones’ absence can be inferred from the record. We
disagree. Clearly, the statements by Ms. Jones to Officer Torres were hearsay. See Tenn.
R. Evid. 801(c). The trial court failed to make any finding of good cause to justify the
denial of Defendant’s confrontation rights, and the State offered no explanation as to why
Ms. Jones, the alleged victim, was not present as a witness. There was no explicit
statement that the State had even issued a subpoena for the witness at her last known
address, which was definitely known by the State. The State also failed to make a
showing that the information contained in these statements was reliable. Officer Torres’
observation of damage to Ms. Jones’ doorframe alone does not support an inference of
reliability. Officer Torres acknowledged during questioning by the State that he did not
know Defendant’s voice and the only reason he could identify the person speaking is by
what Ms. Jones stated.

        Roy Cherry, upon which the State heavily relied in the trial court and on appeal, is
not a published opinion of this court; therefore, it is only persuasive authority. The panel
in Roy Cherry apparently relied heavily on the trial court implicitly finding that the
hearsay presented was reliable and good cause justified its admission as substantive
evidence. After a careful review of all the testimony during the probation revocation
hearing, Defendant’s multiple hearsay objections, the responses of the State, and the trial
court’s statements in its rulings (and what both the State and the trial court did not state),
we are unable to conclude that it is “implicit” that the trial court determined either “good
cause” or “reliability.” Absent specific findings by the trial court, we conclude it was
error to admit the statements over Defendant’s objection.

       A new arrest and pending charges are proper grounds on which a trial court can
revoke a defendant’s probation; however, a trial court may not rely on the mere fact of an
arrest or an indictment to revoke a defendant’s probation. State v. Harkins, 811 S.W.2d
79, 83 n. 3 (Tenn. 1991). A revocation on this basis requires the State to “produce
evidence in the usual form of testimony” in order to establish the probationer’s
commission of another offense while on probation. State v. Walter Lee Ellison, Jr., No.
01C01-9708-CR-00361, 1998 WL 272955, at *2 (Tenn. Crim. App., May 29, 1998). In
cases where the alleged violation is the commission of a new offense, the State must
present sufficient facts to allow the trial court to find by a preponderance of the evidence

                                            -5-
that the conduct in question violated the law. The State’s proof, consisting of hearsay
evidence which was not admissible, failed to meet this test.

        The State also argues in its brief that revocation of probation was justified because
the trial court found that Defendant failed to complete the “Jericho Project Program,”
which was required in Rule #10 of Defendant’s conditions of probation. However,
failure to complete the “Jericho Project Program” was not alleged as a ground to revoke
probation. The record contains a document which consists of both an affidavit setting
forth violations of probation and a warrant for Defendant’s arrest for probation violations.
The grounds set forth were: violation of Rule #1, by an arrest for aggravated burglary and
domestic assault, and a violation of Rule #14, by committing assaultive, abusive,
threatening, and intimidating behavior by grabbing the victim and throwing her upon the
floor. A “Petition for Revocation of Suspension of Sentence” was also filed. The
petition alleged that one of the conditions of probation was Rule #10, which states, “I will
observe any special conditions imposed by the Court as listed: Complete Jericho Project
Program and all requirements and recommendations.” However, the petition specifically
alleges as violations of probation only violations of Rule #1 and Rule #14. Only the
grounds alleged in the petition can be a basis to revoke probation. See Gagnon v.
Scarpelli, 411 U.S. 778, 786 (1973); State v. Terry Sherrod, No. M2016-01112-CCA-R3-
CD, 2017 WL 696844, *4 (Tenn. Crim. App., Feb. 22, 2017), perm. app. denied (Tenn.,
May 18, 2017). Thus, under the circumstances, we respectfully reject the State’s
argument.

                                      CONCLUSION

        Based on the foregoing and the record as a whole, we reverse the judgment of the
trial court and remand this case for a probation revocation hearing consistent with this
opinion.

                                   ____________________________________________
                                   THOMAS T. WOODALL, PRESIDING JUDGE




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