State of Tennessee v. Donta Henry Ivory

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 19, 2013

STATE OF TENNESSEE v. DONTA HENRY IVORY

Appeal from the Circuit Court for Montgomery County

Nos. 41001146, 41100312, Michael R. Jones, Judge

No. M2012-01815-CCA-R3-CD - Filed June 12, 2013

The Defendant-Appellant, Donta Henry Ivory, appeals from the Montgomery County Circuit

Court’s order revoking his probation. Ivory entered a guilty plea to statutory rape, and he

received a suspended sentence of two years. In a separate case, he later entered a best

interest plea to an amended charge of aggravated assault and received a five-year suspended

sentence concurrent with the previous two-year sentence. On appeal, Ivory argues that the

trial court erred in revoking his probation. Upon review, we affirm the judgment of the trial

court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,

J R., and J EFFREY S. B IVINS, JJ., joined.

Roger E. Nell, District Public Defender; Daniel Ufford, Assistant District Public Defender,

Clarksville, Tennessee, for the Defendant-Appellant, Donta Henry Ivory.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney

General; John W. Carney, Jr., District Attorney General; and Dan Brollier, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

On April 19, 2012, a probation violation warrant was issued alleging Ivory had (1)

been arrested and charged with committing aggravated burglary, (2) admitted smoking

marijuana, and (3) owed $2,114.00 in court costs. At the revocation hearing, Bonn Vincent

Brabston testified that on April 13, 2012, he was at home and heard individuals on his back

porch. He said:

[A]t some point, somebody tried to open the door, unsuccessfully. Somebody

shifted over to the window. They tried to open the window up unsuccessfully

and then somebody returned to the door and started working on it, at which

point, I went across the street and talked with my neighbor and she called 911

for me and I talked to the police department.

....

At some point after I crossed the street to call the police, somebody did

break in the door.

Brabston said from the voices he heard, he thought there were two men trying to break into

his residence. He stated that “food and hygiene products as well as an electric razor [were]

taken.” He did not give anyone permission to enter his residence. Brabston acknowledged

he was visually impaired and did not see the individuals breaking in or the person the police

captured.

Aleshia Chambers testified that she was at her house on April 13, 2012, when

Brabston came and told her “that somebody was trying to break into his house.” She offered

Brabston her telephone to call the police and “look[ed] across the street and [saw] what was

going on at his house.” She saw Ivory and two other men in Brabston’s back yard talking

with Brabston’s next door neighbor, Betty. Chambers said after Betty walked back into her

house, she heard “a boom noise and then after the boom, [Ivory] disappeared and [Chambers]

was telling Mr. Brabston while he was on the phone talking to the police that [she thought]

they kicked his door down.” Brabston relayed this information to the police. When the first

police car arrived, from her house Chambers saw Ivory “took off running,” and the three men

“ran through the woods.” She saw the police bring Ivory back to the house in a police car.

She identified Ivory in the courtroom.

On cross-examination, Chambers acknowledged she could not see Ivory enter

Brabston’s house because he was behind Brabston’s house. She acknowledged she did not

see Ivory carrying anything but saw one man, whom at the time of the incident appeared to

be white, carrying a big box. Chambers said these events occurred around four or five

o’clock in the afternoon. She said the police arrived within “three or four minutes at the

most.”

Danesha Baldwin of the Tennessee Board of Probation and Parole testified that Ivory

tested positive for marijuana, and on November 16, 2011, he “admitted to smoking marijuana

on or about November 7th.” She said Ivory’s file did not reveal whether or not he made any

effort to pay his court costs. On cross-examination, Baldwin testified that she had not met

-2-

with Ivory. She said his record did not contain proof of employment but did show his

registration with the Career Center.

In revoking Ivory’s probation, the court stated as follows:

Based on the evidence I have heard, there is no doubt that a burglary

occurred, a home burglary occurred. Mr. Ivory is clearly identified as one of

the participants in that burglary, who–upon seeing the police was fleeing with

a box. It doesn’t have to be held by Mr. Ivory, participate without that. So he

is in violation for committing an aggravated burglary. He’s also in violation

for using marijuana. I don’t have sufficient proof to find that he willfully

violated by failures to pay.

....

Having found then that Mr. Ivory violated the terms of his probation by

committing another1 aggravated burglary while on probation, I am going to

order that he serve his sentences in both these cases.

Ivory filed a timely notice of appeal.

ANALYSIS

Ivory argues that the trial court abused its discretion in ordering full revocation of his

probation, because the State did not prove that he committed burglary by a preponderance

of the evidence. He concedes that his proven use of marijuana was “sufficient for the trial

court to revoke probation,” but he argues that “a single use of marijuana does not justify total

revocation. Partial revocation or extension of probation, or both, is an appropriate sanction

for the violation.” The State responds that the trial court properly exercised its discretion in

revoking Ivory’s probation based on both violations. We agree with the State.

If the trial judge determines that the defendant “has violated the conditions of

probation and suspension by a preponderance of the evidence, the trial judge shall have the

right . . . to revoke the probation and suspension of sentence and cause the defendant to

commence the execution of the judgment as originally entered, or otherwise in accordance

with § 40-35-310.” T.C.A. § 40-35-311(e) (2006). Probation revocation rests within the

sound discretion of the trial court, and this court will not disturb the trial court’s ruling absent

1

A previous aggravated burglary charge was dismissed on August 19, 2011, when Ivory entered his

best interest plea to an amended charge of aggravated assault.

-3-

an abuse of that discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001) (citing State

v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991)). In order to establish an abuse of discretion,

the defendant must show “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.”

Harkins, 811 S.W.2d at 82 (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State

v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Once the trial judge has made the

finding that a violation of probation has occurred, he or she has the discretion to order the

defendant to (1) serve his sentence in incarceration; (2) serve the probationary term,

beginning anew; or (3) serve a probationary period that is extended for up to an additional

two years. State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999) (citations omitted); see T.C.A.

§§ 40-35-308, -310, -311.

“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. 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. Catherin Vaughn,

No. M2009-01166-CCA-R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim. App. June 14, 2010)

(citations omitted).

Ivory has failed to demonstrate that the trial court abused its discretion in revoking his

probation. At the outset, as conceded by Ivory, his drug use alone provided the trial court

with a sufficient basis upon which to revoke his probation. Ivory argues that an unlawful

entry into Brabston’s home was not proven. He cites State v. Sherman, 266 S.W.3d 395, 408

(Tenn. 2008), for the proposition that “[m]ere presence during the commission of a crime is

insufficient to support a conviction.” However, Sherman challenged a conviction, which

requires proof beyond a reasonable doubt, and the case sub judice concerns a revocation of

probation, which requires proof by “a preponderance of the evidence . . . that a defendant

violated the conditions of his probation.” State v. Gabel, 914 S.W.2d 562, 564 (Tenn. Crim.

App. 1995); see Delp, 614 S.W.2d at 396-97 (“This Court has previously held that a trial

judge at a probation revocation hearing is not bound by an acquittal of a criminal offense

which occurs, as in this case, after a suspended sentence is granted, when it appears that a

defendant is guilty of conduct inconsistent with good citizenship.”); accord State v. Adams,

650 S.W.2d 382, 383 (Tenn. Crim. App. 1983). Finally, a trial judge is not required to find

that a violation of the terms of probation has occurred beyond a reasonable doubt. Stamps

v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App.1980)

At the hearing, the victim testified that he heard men on his back porch trying to

enter his house through both a door and a window, that his home was broken into, and that

property was taken from his home. His neighbor testified that she saw Ivory behind the

-4-

victim’s house, heard a loud noise, and saw Ivory run from police with two other men. She

identified Ivory as one of the men she saw behind the victim’s home. “In probation

revocation hearings, the credibility of witnesses is for the determination of the trial judge.

His findings have the weight of a jury verdict.” Delp, 614 S.W.2d at 398 (citing Bledsoe v.

State, 387 S.W.2d 811, 814 (1965)). This evidence supported the trial court’s revocation of

Ivory’s probation.

Once the trial court determined that Ivory violated the terms of his probation, it was

authorized “to cause execution of the defendant’s original judgment as it was originally

entered.” Hunter, 1 S.W.3d at 647 (citing T.C.A. § 40-35-310). The court did not abuse its

discretion by ordering Ivory to serve his sentence in custody. “Incarceration was clearly one

of the options available to the trial court upon finding that violations occurred.” State v.

Matthew C. Welker, No. M2011-00900-CCA-R3-CD, 2012 WL 1343857, at *4 (Tenn. Crim.

App. Apr. 17, 2012). Ivory is not entitled to relief.

CONCLUSION

Upon on review, the judgment of the Circuit Court is affirmed.

___________________________________

CAMILLE R. McMULLEN, JUDGE

-5-