State of Tennessee v. Nicholas Clower

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 23, 2012

STATE OF TENNESSEE V. NICHOLAS CLOWER

Appeal from the Circuit Court of Montgomery County

No. 40700129 Michael R. Jones, Judge

No. M2011-01145-CCA-R3-CD - Filed May 16, 2012

Nicholas Clower (“the Defendant”) pled guilty to two counts of sale and delivery of less than

0.5 grams of cocaine. Pursuant to the plea agreement, the Defendant was sentenced to six

years’ probation on each count, to be served concurrently. Upon the filing of a revocation

warrant and subsequent amended warrants, the Defendant was taken into custody, and a

probation revocation hearing was held. At the conclusion of the hearing, the trial court

revoked the Defendant’s probation and ordered him to serve the remainder of his sentence

in confinement. The Defendant has appealed the trial court’s ruling, asserting that the trial

court erred in determining that the Defendant possessed a weapon in violation of his

probation and in requiring the Defendant to serve the remainder of his sentence in

incarceration. Upon a thorough review of the record, we affirm the trial court’s judgment.

Tenn. R. App. P. 3 Appeal as of Right; Judgment

of the Circuit Court Affirmed

J EFFREY S. B IVINS, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,

J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Travis N. Meeks, Clarksville, Tennessee, for the appellant, Nicholas Clower.

Robert E. Cooper, Jr., Attorney General & Reporter; Sophia S. Lee, Senior Counsel; John

W. Carney, District Attorney General; and Samuel Knowlton, Jr., Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

Factual and Procedural Background

On June 6, 2007, the Defendant pled guilty to two counts of sale and delivery of less

than 0.5 grams of cocaine. In accordance with the plea agreement, the Defendant received

concurrent sentences of six years’ probation. A probation violation warrant was issued on

September 21, 2009, but the trial court dismissed this warrant on January 28, 2010. Thus,

the Defendant’s probation was reinstated at this point. Another probation violation warrant

was issued on August 30, 2010, followed by three amended warrants, alleging the following

probation violations: that the Defendant was arrested for manufacture/sale/delivery of

cocaine, possession of drug paraphernalia, possession of a weapon during a felony, unlawful

weapon possession, aggravated assault, domestic assault, and violating his conditions of

release;1 that the Defendant possessed a weapon while on probation; that the Defendant

changed residences without notifying his probation officer; and that the Defendant failed to

report to his probation officer. The trial court held a probation revocation hearing on April

13, 2011.

Juanita Donald, an officer with the Board of Probation and Parole, testified that she

had been the Defendant’s probation officer since June 6, 2007, when the Defendant was

placed on probation for his underlying offenses. At that time, she explained to the Defendant

the rules of his probation, provided him with a copy of those rules, and obtained his signature

acknowledging his understanding of the rules. On August 30, 2010, Donald executed a

violation of probation warrant for the Defendant because the Defendant had been arrested

on new charges and had stopped reporting to Donald. When the Defendant stopped

reporting, Donald visited the Defendant’s home and learned that the Defendant had moved

residences without informing Donald, another violation of his probation. Thus, Donald filed

a subsequent violation warrant, citing this rule violation. Then, in March of 2011, she

executed an additional amended warrant based on the Defendant’s violation of the rule

requiring that the Defendant “not receive, own, possess, ship, or transport any firearms,

ammunition, or illegal weapons.”

Patrol Sergeant Chad Koyama, Clarksville Police Department (“CPD”), testified that

on April 2, 2010, as part of the tactical unit, he was serving a narcotics search warrant at 19

Oak Lane. As his team approached the house, he noticed an individual running from the

back of the house. Upon entering the residence, Sergeant Koyama observed the Defendant

sitting on a couch in the living room. At the probation revocation hearing, he identified the

pistol that he found under a chair in the living room. The Defendant was sitting

approximately five to six feet from this chair.

On cross-examination, Sergeant Koyama stated that he was not sure how long the

Defendant had been at 19 Oak Lane when they arrived. He also identified the Defendant as

1

The charges for aggravated assault, domestic assault, and the violation of his conditions of release

were subsequently dismissed. Accordingly, the State opted not to proceed on these grounds as bases for the

revocation of the Defendant’s probation.

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the only individual in the house when they executed the warrant. Sergeant Koyama described

the chair and explained that, in order to find the weapon, he had to lift the chair off the

ground.

Agent Tybis Woody, a drug agent with the CPD, testified that he was the lead agent

executing the search warrant on April 2, 2010. He entered the residence once it was secure

and observed the Defendant sitting on the couch. He also observed several items, including

cash, cell phones, and “a baggie with white crystalline rock.” Agent Woody stated, “On one

of the shelves [of an entertainment center was] a Ziploc bag, or bag – sandwich baggie with

22 Magnum rounds, a box of 22 Magnum rounds, a corner bag with a white crystalline rock

substance, and a box on the outside shows a cell phone digital scale.” He explained that the

purpose of the digital scale is to weigh controlled substances. The crystalline rock substance

later field tested positive for cocaine salts. They also found a crystalline rock substance

behind the residence. Additionally, Agent Woody identified a photograph of a weapon as

the 22-caliber Derringer found in the living room. He confirmed that the gun was loaded

when he inspected it on that day.

On cross-examination, Agent Woody acknowledged that his team had been

conducting controlled buys from 19 Oak Lane and that the individual from whom they were

buying was not the Defendant. Additionally, while inspecting the house, he and his team

found many items of paperwork bearing the name “Simmons” and not that of the Defendant.

Denotria Patterson, a forensic chemist in the Tennessee Bureau of Investigation

(“TBI”) crime lab, testified as an expert in the field of chemistry and narcotics analysis. She

tested two substances that both tested positive for cocaine.

Jennifer Spivey, a special agent forensic scientist at TBI, testified as an expert in the

field of latent print analysis. She explained, “A latent print is the reproduction of the

elevated ridges of the skin made by the transfer of sweat or oily material left behind on an

object after it’s been touched.” Agent Spivey identified the 22-caliber Derringer on which

she was asked to analyze the prints. In performing the analysis and comparing the prints with

that of the Defendant, she discovered a print that matched the right index finger of the

Defendant. Agent Spivey stated that there were no other prints found on the weapon.

Although she only found a partial print, Agent Spivey stated that enough of the print was

evident to match it conclusively to the Defendant.

Deshawna Simmons testified that she was the tenant of 19 Oak Lane. However, at

the time the police executed the warrant, she no longer lived at that residence. She stated that

she was allowing her brother, Antonio Simmons, to occupy the residence. Simmons

identified the weapon found at the residence as her gun. She had received the gun from a

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boyfriend because the house was in a “really bad neighborhood,” but she left the gun at the

residence when she moved out.

Sherica Harris testified that she was the Defendant’s girlfriend. She stated that, on

the day the Defendant was arrested, she had spent most of the day with the Defendant.

However, a few minutes after the Defendant dropped her off at work, she received a text

message from the Defendant’s mother, informing her that the Defendant had been arrested

shortly after arriving at 19 Oak Lane. Harris stated that, prior to the Defendant dropping her

off at work, he did not have a gun or cocaine on his person that day. She acknowledged that

she had seen the gun before and identified the gun as belonging to Simmons. She denied

ever seeing the gun in the Defendant’s possession.

The Defendant testified that on the day he was arrested, he dropped off his girlfriend

at work. Then, he drove over to 19 Oak Lane, walked in the door, and threw some candy in

the trash. Approximately five or six minutes after entering the house, he heard someone say

that the SWAT team was outside, and the three other individuals in the house fled through

the back of the house. The Defendant walked toward the front of the house with his hands

up, ready to surrender. Defense counsel asked the Defendant why he chose not to run. The

Defendant replied, “Because I didn’t have any – I wasn’t guilty of anything. I didn’t have

anything to run for.” He denied knowing that there was a gun in the living room. Although

the Defendant acknowledged touching and holding the gun when Simmons first acquired it,

he stated that he had not touched the gun in any recent time leading up to his arrest on that

day.

On cross-examination, although the Defendant could not remember exactly when it

was that he held the gun, he agreed that it was sometime after he had been placed on

probation. However, when the State pressed the Defendant about the fact that holding the

gun while on probation would violate the terms of his probation, the Defendant stated, “I

wasn’t holding the gun. I probably touched the gun but I’ve never held the gun.”

After considering the proof, the trial court stated, “There’s uncontroverted proof that

[the Defendant] violated the terms of his probation by failing to report and moving without

permission. The other matters include a weapon, which was found in close proximity to him

and had his fingerprint on it. That’s sufficient for a preponderance of the evidence to find

that he was in possession of a handgun while on probation, which, of course, is another

violation.” The trial court decided not to make a finding as to the possession of cocaine,

based on the fact that there were several other individuals in the house. Accordingly, the trial

court found the Defendant “in violation based on possession of the weapon, his failing to

report and moving without permission.” The trial court ordered the Defendant to serve the

remainder of his sentence in confinement. The Defendant timely appealed.

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Analysis

The Defendant asserts that the “[t]rial court erred by finding that the State had proved

by preponderance of the evidence that the Defendant possessed a handgun on April 1, 2010.”

He also contends that the trial court erred in requiring that the Defendant serve the rest of his

sentence in incarceration.

Tennessee Code Annotated section 40-35-311 provides that, in a probation revocation

proceeding, the court “may enter judgment upon the question of the charges as the trial judge

may deem right and proper under the evidence adduced before the trial judge.” Tenn. Code

Ann. § 40-35-311(d) (2010). And,

[i]f the trial judge finds that the defendant has violated the conditions

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

shall have the right by order duly entered upon the minutes of the court to

revoke the probation and suspension of sentence, and:

(A) Cause the defendant to commence the execution of the judgment

as originally entered, or otherwise, in accordance with [section] 40-35-310; or

(B) Resentence the defendant for the remainder of the unexpired term

to any community-based alternative to incarceration authorized by chapter 36

of this title; provided, that the violation of probation and suspension is a

technical one and does not involve the commission of a new offense.

Id. § 40-35-311(e)(1); see also State v. Hunter, 1 S.W.3d 643, 647 (Tenn. 1999).

Thus, the State must only prove that the defendant violated the terms of his or her

probation by a preponderance of the evidence. In this regard, “[t]he trial judge has a duty at

probation revocation hearings to adduce sufficient evidence to allow him [or her] to make

an intelligent decision.” State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991);

see also State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991) (“The proof 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 judgment.”) (citing State v. Milton, 673

S.W.2d 555, 557 (Tenn. Crim. App. 1984)).2

2

In Harkins, our Supreme Court stated that, “[i]n 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.” 811 S.W.2d at 82. However, as this Court pointed out in State v. Farrar, 355

(continued...)

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On appeal, we will not disturb the trial court’s decision to revoke probation absent an

abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001); see also State v.

Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007). We will grant relief only when “‘the

trial court’s logic and reasoning was improper when viewed in light of the factual

circumstances and relevant legal principles involved.’” Shaffer, 45 S.W.3d at 555 (quoting

State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)).

The Defendant first asserts that the trial court erred in determining by a preponderance

of the evidence that the Defendant possessed a weapon while on probation. One of the terms

of the Defendant’s probation was, “I will not receive, own, possess, ship, or transport any

firearms, ammunition or illegal weapons.” Our supreme court has recognized “possession”

to be either actual or constructive. See State v. Shaw, 37 S.W.3d 900, 903 (Tenn. 2001). By

analogy, in the drug possession context, “[c]onstructive possession requires proof that a

person had ‘the power and intention at a given time to exercise dominion and control over

. . . [the drugs] either directly or through others.’” Id. (quoting State v. Patterson, 966 S.W.2d

435, 445 (Tenn. Crim. App. 1997)). Furthermore, “[o]ne’s mere presence in an area where

drugs are discovered, or one’s mere association with a person in possession of drugs, is not

alone sufficient to support a finding of constructive possession.” Id. (citations omitted).

Here, the trial court found that the gun was discovered near the Defendant and

contained his fingerprint. Thus, the trial court determined that such facts sufficiently

established by a preponderance of the evidence that the Defendant possessed a handgun

while on probation. Moreover, when first questioned about the gun, the Defendant testified

that he held the gun when Simmons first acquired it. He also admitted that the occasion

when he held the gun would have been while he was on probation. Although mere presence

is not enough to establish constructive possession, the record reflects that the Defendant was

found in close proximity to the weapon, his fingerprint was on the weapon, and he initially

admitted to holding the gun while on probation. This Court previously has determined that

sufficient evidence exists for a finding of possession when a defendant admitted to holding

a gun when looking to buy it and acknowledged that his fingerprints would be on the

weapon. See State v. Marquis Devereaux Hall, No. M2010-00711-CCA-R3-CD, 2011 WL

3557825, at *5 (Tenn. Crim. App. Aug. 12, 2011), perm. app. denied, (Tenn. Oct. 19, 2011).

2

(...continued)

S.W.3d 582 (Tenn. Crim. App. 2011), “the statute governing probation revocation in effect at the time of .

. . Harkins . . . contained no specific burden of proof to be met before the trial court could revoke probation.”

Farrar, 355 S.W.3d at 586. As set forth above, the statute applicable in this case permits the trial court to

revoke probation upon finding only by a preponderance of the evidence that the defendant has violated the

terms of his or her probation. Therefore, we join the Farrar panel in “question[ing] whether the ‘no

substantial evidence’ language of Harkins remains applicable to the determination whether the trial court

abused its discretion when revoking probation.” Farrar, 355 S.W.3d at 586.

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Thus, the trial court in this case did not abuse its discretion in determining that the Defendant

possessed a gun in violation of his probation.

Furthermore, even if this Court were to hold that the Defendant did not possess the

gun in violation of his probation, the trial court determined that the Defendant also had two

other probation violations. The trial court found that there was “uncontroverted proof” that

the Defendant violated probation by failing to report to his probation officer and failing to

notify the officer of his change in residence. The Defendant has not challenged either of the

other violations. This Court has stated, “There need be only one violation of the conditions

of probation to support revocation.” State v. Phillip Thomas Wilcox, No. M2002-00667-

CCA-R3-CD, 2003 WL 21047133, at *2 (Tenn. Crim. App. May 9, 2003). Thus, the trial

court did not abuse its discretion in determining that the Defendant violated the terms of his

probation.

The Defendant also argues that the trial court erred when it required the Defendant

to serve the remainder of his sentence in incarceration. When a trial court revokes a

defendant’s probation, the court then may order the defendant to serve out his or her original

sentence. See Tenn. Code Ann. §§ 40-35-310 (2010) and -311(e); State v. Taylor, 992

S.W.2d 941, 945 (Tenn. 1999). “This court has repeatedly cautioned that ‘an accused,

already on probation, is not entitled to a second grant of probation or another form of

alternative sentencing.’” State v. Juan Manuel Coronado, II, No.E2010-01058-CCA-R3-CD,

2011 WL 704543, at *3 (Tenn. Crim. App. Mar. 1, 2011) (quoting State v. Jeffrey A.

Warfield, No. 01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10,

1999)) (other citation omitted). The trial court found that the Defendant violated his

probation by possessing a weapon, failing to report to his probation officer, and failing to

notify the officer of his change in residence. Thus, there was no error on the part of the trial

court in requiring the Defendant to serve the remainder of his original sentence in

incarceration.

Conclusion

The trial court did not err in revoking the Defendant’s probation and ordering him to

serve the remainder of his sentence in confinement. Accordingly, the judgment of the trial

court is affirmed.

_________________________________

JEFFREY S. BIVINS, JUDGE

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