State of Tennessee v. Geoffrey Alexander

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 8, 2011

STATE OF TENNESSEE v. GEOFFREY ALEXANDER

Direct Appeal from the Criminal Court for Williamson County

Nos. II-CR061152, II-CR061153, II-CR061154 Timothy Easter, Judge

No. M2010-00887-CCA-R3-CD - Filed May 18, 2011

The Defendant-Appellant, Geoffrey Alexander, appeals the revocation of his probation. In

this appeal, Alexander argues that (1) the trial court erred by revoking his probation and (2)

the trial court should have granted his request for a continuance. Upon review, we affirm the

judgment of the trial court.

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

C AMILLE R. M CM ULLEN , J., delivered the opinion of the court, in which J OHN E VERETT

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

Larry D. Drolsum, Franklin, Tennessee, for the Defendant-Appellant, Geoffrey Alexander.

Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant

Attorney General; Ronald L. Davis, District Attorney General; and Sean B. Duddy, Assistant

District Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. Alexander was charged with three counts of delivery of a controlled

substance in a school zone, a Class D felony. He entered a negotiated plea agreement under

which he pled guilty to three counts of delivery of not less than one-half (½) ounce of

marijuana, a Class E felony. The judgments were entered on February 24, 2006. Alexander

received an effective sentence of four years in the Tennessee Department of Correction and

was assessed fines totaling $10,000. Under the plea agreement, he was placed on supervised

probation after serving six months in confinement. The plea agreement required that

Alexander pay fines and court costs on a schedule determined by his probation officer.

Alexander was also subject to conditions set forth in the probation orders.

Prior to the instant case, Alexander twice violated his probation. In the first violation,

submitted on July 13, 2006, Alexander failed to complete a mandatory drug rehabilitation

program. Based on Alexander’s admission to the violation, the trial court revoked his

probation. Alexander received time served, and his probation was reinstated.

The second violation, reported on January 28, 2008, alleged that Alexander failed to

pay fines and court costs. The affidavit states, “Subject has a court cost balance of $3,437

and his probation is due to expire on 1/30/08.” Alexander admitted to the violation, and the

trial court imposed a two-year probationary sentence that extended Alexander’s probation

to February 25, 2010. The trial court specified that the sentence could be dismissed before

the latter date if Alexander paid all of his fines and court costs.

The instant violation report, filed on October 20, 2009, alleged the following

violations:

Violation of Probation Rule #1[:] “Subject was arrested on 8-2-09 in

Davidson Co. Tennessee and was charged with Theft of Merchandise under

$500.00. This case has been bound over to the Davidson County Grand Jury.”

Violation of Probation Rule #4: “Offender has not provided proof of

employment since February 2009 and has not followed his Probation Officer’s

instructions as to job searches.”

Violation of Probation Rule #10: “Offender has not paid court costs and fines

as instructed by his Probation Officer.”

The alleged violations were addressed at a probation hearing on March 23, 2010.

Probation Hearing. The facts supporting the violation of State law condition

involved the theft of Zoey Kentel’s purse while she and her friend were at a dance club.

Kentel, employed with the United States Army, testified that on the night of August 2, 2009,

she was dancing on an elevated platform with her friend. She noticed Alexander looking up

at her from the dance floor below. She made eye contact with Alexander, and he asked her

to turn around. Kentel ignored Alexander and continued dancing. Several minutes later, she

felt a tug on her right hand. Kentel thought she dropped her purse; however, when she turned

around, she saw Alexander with her purse leaving the dance floor. Kentel took off her high

heels and started chasing Alexander. He began to sprint after realizing he was being chased.

Kentel testified that Alexander put her purse underneath his shirt. The chase continued down

a flight of stairs. Kentel eventually caught Alexander. She stated, “I started hitting him in

his shoulders and in the back of his head with my high heels.” Kentel said Alexander was

still in possession of her purse at that time. The chase continued and Alexander ran toward

the bathroom area. Kentel was eventually able to grab Alexander. She stated, “By the time

the bouncers had caught up to us I had him in a partial neck choke not fully locked in.”

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Alexander was no longer in possession of the purse when he was apprehended. Kentel said

the purse was found about a minute later by the bathroom attendant. The purse contained

three phones, three cameras, and a Global Positioning System.

Officer Tiffany Hoadley testified that she responded to a call from the dance club on

the night of August 2, 2009. She conducted a field investigation during which she spoke

with all of the parties involved. Officer Hoadley determined there was probable cause to

arrest Alexander. She issued Alexander a misdemeanor citation in lieu of an arrest. On

cross-examination, Officer Hoadley testified that the purse was returned to Kentel at the

scene of the offense. It was not tested for fingerprints, and it was not placed into evidence.

Officer Hoadley said she spoke with Alexander at the dance club. She recalled that he denied

stealing the purse.

Evelyn Jones-Jackson, Alexander’s probation officer, testified that she worked for the

Tennessee Board of Probation and Parole. Jones-Jackson testified regarding the other two

probation violations. She stated that Alexander did not work at a lawful occupation to the

best of his abilities. She further testified that Alexander had not complied with this condition

since February of 2009. She stated, “He has worked [at] a couple of temporary agencies

maybe like a week or so to get one pay stub and that’s it.” Jones-Jackson testified that

Alexander also failed to make payments toward a $3,000 fine. She said he was required to

pay $50 a month, which he did not do. Jones-Jackson confirmed that this was Alexander’s

third probation violation.

On cross-examination, Jones-Jackson testified further about Alexander’s search for

employment. She stated:

[W]hen I first tried to get [Alexander] to look for a job, he would bring in stuff

that looked like he just wrote it out of a newspaper. And I told him that wasn’t

acceptable, he had to bring in something that was accurate. I would call some

of the places and they had never heard of Mr. Alexander. He was just writing

stuff down to just turn paperwork in.

....

In the last six months prior to this probation violation I called a total of

maybe 10 places, and out of the 10 he actually went to one.

Jones-Jackson claimed she advised Alexander on where to look for a job. She stated, “I told

him what to do. I gave him directions. I told him exactly who to go talk to because he was

trying to get custody of his son and he asked me to help him out. I told him where to go and

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he didn’t do it.” Jones-Jackson added that Alexander “didn’t go to the appropriate places that

would help a convicted felon get a job[.]”

Twenty-eight year old Alexander testified that he was employed for approximately

twenty months while on probation. After he was laid off, he struggled to meet his payment

obligations]. Alexander acknowledged that there were eight or nine months when he failed

to make payments. He further testified that he tried to find a job daily. He believed his job

search was unsuccessful because he was a convicted felon. Alexander said he struggled to

pay his probation fees because he was also paying child support.

On cross-examination, Alexander admitted that he was found in violation of his

probation on two prior occasions. He said he conceded both of those violations. Alexander

testified that he spoke with his probation officer after he was laid off. He stated that the

probation officer told him to go to the Tennessee Career Center. Alexander said the

Tennessee Career Center provided a list of eight felon-friendly companies. He did not apply

with any of these companies because he was told by the Tennessee Career Center that none

of them were accepting applications. Alexander testified that he went to at least twenty

places and filled out applications. He claimed he brought proof of his job search to his

probation officer. Alexander stated, “I brought her all the papers of all the places that I went

to.”

Following the testimony at the probation hearing, the trial court determined that

Alexander violated three conditions of his probation. Based on the evidence concerning

Alexander’s arrest and theft charge, the trial court found that Alexander failed to obey the

laws of the state. The trial court also determined that Alexander failed to provide proof of

employment. It reasoned that Alexander did not make sufficient efforts to maintain and find

employment. Lastly, the trial court determined that Alexander failed to pay his court costs

and fines as instructed by his probation officer. The trial court ordered that Alexander serve

the balance of his sentence in confinement. It stated, “[E]fforts other than incarceration have

been applied recently to this defendant. Those efforts have been unsuccessful and, therefore,

the appropriate thing for this Court to do after three violations of probation is to order that

he serve the balance of his sentence[.]”

Alexander appealed the decision of the trial court by filing a timely notice of appeal.

ANALYSIS

I. Probation Revocation. Alexander argues that the trial court erred by revoking his

probation. He claims the testimony at the probation hearing did not establish any of the

alleged violations. Alexander asserts that the evidence failed to show that he committed

theft. He also contends the evidence proved that he made sufficient efforts to find

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employment and to pay his fines. In response, the State argues that the revocation was

supported by three separate violations. The State claims Alexander is asking this court to

overrule the credibility determinations of the trial court. Upon review, we hold that the trial

court did not abuse its discretion by revoking Alexander’s probation.

A trial court may revoke probation and order the imposition of the original sentence

upon finding by a preponderance of the evidence that the defendant has violated a condition

of probation. T.C.A. §§ 40-35-310, -311(e) (2009). Probation revocation rests within the

sound discretion of the trial court. State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim.

App. 2005) (citing State v. Mitchell, 810 S.W.2d 733, 735 (Tenn. Crim. App. 1991)). A trial

court’s decision to revoke probation will be upheld absent an abuse of discretion. State v.

Beard, 189 S.W.3d 730, 735 (Tenn. Crim. App. 2005). In order to establish an abuse of

discretion, the defendant must show that there is no substantial evidence in the record to

support the trial court’s determination regarding the probation violation. Id. (citations

omitted).

Once the trial court has determined a violation of probation has occurred, it retains

discretionary authority 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).

Additionally, under Tennessee Code Annotated section 40-35-310(b), the trial court

may also 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 the defendant’s suspension of sentence

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

T.C.A. § 40-35-310(b). The determination of the proper consequence of the probation

violation embodies a separate exercise of discretion. Hunter, 1 S.W.3d at 647; State v.

Reams, 265 S.W.3d 423, 430 (Tenn. Crim. App. 2007).

Upon our review of the record, the trial court did not abuse its discretion by revoking

Alexander’s probation. Proof by a preponderance of the evidence showing that a defendant

violated the law is necessary to establish a violation of condition number one. See State v.

Catherin Vaughn, No. M2009-01166-CCA-R3-CD, 2010 WL 2432008, at *3 (Tenn. Crim.

App., at Nashville, June 14, 2010) (noting that proof of a conviction is not necessary). In

addition, the State “must present sufficient facts at the revocation hearing to enable the trial

court to ‘make a conscientious and intelligent judgment as to whether the conduct in question

violated the law.’” State v. Jason L. Holley, No. M2003-01429-CCA-R3-CD, 2005 WL

2874659, at *4 (Tenn. Crim. App., at Nashville, Oct. 25, 2005) (quoting State v. Harkins, 811

S.W.2d 79, 83 n.3 (Tenn. 1991)). Here, sufficient evidence was presented that Alexander

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committed a new offense. The record supports the trial court’s decision violating

Alexander’s probation for failure to comply with the laws of the State.

The record further supports the trial court’s determination that Alexander violated the

conditions of his probation by failing to maintain lawful employment. Here, the trial court

credited the testimony of Alexander’s probation officer over Alexander’s claims that he

sought employment but was unsuccessful. Alexander’s probation officer provided

substantial evidence that Alexander did not actively seek and maintain lawful employment.

We are not permitted to override the credibility determinations of the trial court. Alexander

is not entitled to relief on this issue

Lastly, we must address whether Alexander violated condition number ten by failing

to pay fines and court costs. Citing State v. Dye, 715 S.W.2d 36 (Tenn. 1986), Alexander

contends that the trial court was required to consider his reasons for not paying his fines in

support of this claim. The State does not address this issue.

In Dye, the Tennessee Supreme Court stated that when a revocation is based on the

failure to pay costs and fines, the trial court must determine the underlying reasons for why

the payment was not made. Id. at 40. The court quoted the following passage from Bearden

v. Georgia, 461 U.S. 660 (1983):

[I]n revocation proceedings for failure to pay a fine or

restitution, a sentencing court must inquire into the reasons for

the failure to pay. If the probationer willfully refused to pay or

failed to make sufficient bona fide efforts legally to acquire the

resources to pay, the court may revoke probation and sentence

the defendant to imprisonment within the authorized range of its

sentencing authority. If the probationer could not pay despite

sufficient bona fide efforts to acquire the resources to do so, the

court must consider alternative measures of punishment other

than imprisonment.

Id. (quoting Bearden v. Georgia, 461 U.S. at 672). In this case, we acknowledge that the trial

court’s findings do not explicitly address whether Alexander willfully refused to pay his

fines. However, on this record, we conclude that the trial court was permitted to revoke

Alexander’s probation. In this vein, we will uphold a probation revocation if “an

independent and proper basis exists aside from the defendant’s failure to pay restitution[.]”

State v. Roderick Dean Hughes, No. E2009-00649-CCA-R3-CD, 2009 WL 3787251, at *3

(Tenn. Crim. App., at Knoxville, Nov. 12, 2009) (citing State v. Daryl McKinley Robinson,

No. W1999-01386-CCA-R3-CD, 2000 WL 546209, at *2 (Tenn. Crim. App., at Jackson,

May 4, 2000). The record shows that Alexander violated two other conditions of his

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probation. Therefore, the trial court was authorized to revoke his probation. Alexander is

not entitled to relief on this issue.

II. Continuance. Alexander argues that the trial court erred by denying his request

for a continuance. He claims a continuance would have allowed him to locate a subpoenaed

witness who failed to appear. The subpoenaed witness1 was a bouncer at the dance club

where Alexander was arrested. Alexander contends the bouncer’s testimony was material

because it may have contradicted Kentel’s testimony about the theft. In response, the State

argues that the trial court did not abuse its discretion by denying the request for a

continuance. It asserts that Alexander was given time on the date of the hearing to locate the

bouncer. The State also points out that the probation hearing was reset on four prior

occasions. Furthermore, the State claims Alexander cannot show prejudice because he

violated two other conditions of his probation.

The decision whether to grant a continuance “rests within the sound discretion of the

trial court.” State v. Morgan, 825 S.W.2d 113, 117 (Tenn. Crim. App. 1991). The Tennessee

Supreme Court has held that the reviewing court should “reverse the denial of a continuance

only if the trial court abused its discretion and the defendant was prejudiced by the denial.”

State v. Thomas, 158 S.W.3d 361, 392 (Tenn. 2005). An abuse of discretion is shown when

“the failure to grant a continuance denied [the] defendant a fair trial or [when] it could be

reasonably concluded that a different result would have followed had the continuance been

granted.” Id. (quoting State v. Hines, 919 S.W.2d 573, 579 (Tenn. 1995)). In other words,

this court will reverse a denial of a motion to continue only upon a showing that the

petitioner “did not have a fair trial and that a different result would or might reasonably have

been reached had there been a different disposition of the application for a continuance.”

Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim. App. 1973); see also State v. Caughron,

855 S.W.2d 526, 534 (Tenn. 1993); State v. Butler, 795 S.W.2d 680, 684 (Tenn. Crim. App.

1990).

The bouncer’s absence was addressed before Alexander testified. Defense counsel

informed the trial court that he personally served the bouncer with a subpoena, which is

included in the record as exhibit 1. The subpoena was issued four days before the probation

hearing. Defense counsel told the trial court that he had an extended discussion with the

bouncer. He claimed the bouncer would directly refute Kentel’s testimony. The trial court

stated that it planned to finish the hearing on that day and provided the defense until the end

of the day to present the bouncer’s testimony. The trial court offered to issue a capias if

defense counsel could verify the bouncer’s location. Defense counsel acknowledged that he

1

The name of the subpoenaed witness was Jason Alexander. The record contains limited information

about this witness. Defense counsel gave no indication that Jason Alexander was related to the defendant.

For purposes of simplicity, we will refer to Jason Alexander as “the bouncer.”

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did not know where the bouncer was. This discussion ended shortly before 11:45 a.m. At

5:00 p.m., defense counsel informed the trial court that he was unable to locate the bouncer.

Defense counsel requested that the trial court reset the hearing to a later date. The trial court

asked defense counsel for some assurance that the bouncer would be present for a future

hearing. Defense counsel responded that he planned to look for the bouncer in the coming

days. The trial court denied the request for a continuance. It emphasized that the hearing

was reset on four prior occasions. The trial court also pointed out that Kentel had been

forced to stay at the courtroom all day as a potential rebuttal witness. Additionally, the trial

court found that defense counsel failed to provide adequate assurance that the bouncer would

be present for a later hearing.

In viewing the record, the trial court did not abuse its discretion by denying the motion

for a continuance. In addition, Alexander has not shown that he was prejudiced by the denial

of the continuance. As previously discussed, the trial court found that Alexander also

violated his probation by failing to actively seek and maintain lawful employment. This

violation alone supported the probation revocation. In considering this independent

violation, we cannot reasonably conclude that the trial court would have reached a different

result. Alexander is not entitled to relief on this issue.

CONCLUSION

Based on the foregoing, the judgment of the trial court is affirmed.

___________________________________

CAMILLE R. McMULLEN, JUDGE

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