The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 13, 2015
STATE OF TENNESSEE v. ADAM TODD TUCKER
Appeal from the Circuit Court for Lawrence County
Nos. 30857, 31527, 31539, 31540 Jim T. Hamilton, Judge
No. M2014-01931-CCA-R3-CD - Filed June 15, 2015
The Defendant, Adam Todd Tucker, appeals the Lawrence County Circuit Court’s order
revoking his probation for his convictions for two counts of theft of property valued at $1000
or more but less than $10,000, theft of property valued at more than $500 but less than
$1000, and promotion of methamphetamine manufacture and ordering his effective eight-
year sentence into execution. 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 Circuit Court Affirmed
R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which J AMES
C URWOOD W ITT, J R., and T IMOTHY L. E ASTER, JJ., joined.
Claudia S. Jack, District Public Defender, and R.H. Stovall, Jr., Assistant Public Defender,
for the appellant, Adam Todd Tucker.
Herbert H. Slatery III, Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Brent Cooper, District Attorney General; and Gary M. Howell, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
On September 27, 2012, the Defendant pleaded guilty in case number 30857 to theft
of property valued at $1000 or more but less than $10,000 and was sentenced to four years’
probation after serving ninety days in confinement. On April 25, 2013, a probation violation
report was filed, alleging that the Defendant failed to obtain employment or to provide
documentation of an employment search, failed to report to his probation officer as scheduled
during March 2013, failed to comply with the “ACRC and FSW” recommendation of
inpatient treatment, had a positive drug screen for morphine on January 24, 2013, had a
positive drug screen for amphetamine, methamphetamine, cocaine, and morphine on April
4, 2013, and failed to pay supervision fees and court costs. On May 30, 2013, the trial court
ordered a partial probation revocation and returned the Defendant to probation after he
served ninety days in the county jail.
Also on May 30, 2013, the Defendant pleaded guilty to multiple offenses. In case
number 31539, he pleaded guilty to theft of property valued at $1000 or more but less than
$10,000, and he received a four-year sentence to be served on probation. The trial court also
ordered the sentence be served consecutively to the four-year sentence in case number 30857.
In case number 31540, he pleaded guilty to theft of property valued at more than $500 but
less than $1000, and he received two years’ probation. In case number 31527, he also
pleaded guilty to promotion of methamphetamine manufacture and received four years’
probation. As a result, the Defendant received an effective eight years’ probation after
serving ninety days in confinement for the probation violation and new charges.
On September 12, 2013, a probation violation report was filed relative to all four case
numbers, alleging that the Defendant failed to obtain employment or to provide
documentation of an employment search, failed to report to his probation officer as scheduled
on June 25, 2013, failed to report during August 2013, and failed to pay fees and court costs.
The report also alleged that on August 21, 2013, the Defendant was not home when a
probation officer attempted to conduct a home visit and that the officer was told the
Defendant was living with a girlfriend. On November 14, 2013, the probation violation
report was amended and alleged that on August 2, 2013, the Defendant was indicted for
burglary, felony theft of property, and criminal trespass. On November 27, 2013, the trial
court found that the Defendant had violated his probation. It ordered the Defendant to serve
six months in jail before being reinstated to probation. The Defendant did not appeal.
On April 24, 2014, another probation violation report was filed with the trial court,
alleging that the Defendant failed to obtain employment or to provide documentation of an
employment search, failed to report to his probation officer after serving six months in
confinement for the previous probation revocation, and failed to pay fees and court costs.
The report also alleged that the Defendant’s residence could not be verified when a home
visit was attempted on April 8, 2014. This probation violation report is the subject of the
present appeal.
At the revocation hearing, Probation Officer Ladner testified that on September 27,
2012, the Defendant was placed on probation and that Probation Officer Nicely supervised
the Defendant. On April 24, 2014, Officer Nicely filed a probation revocation report after
the Defendant failed to report to her office and failed to provide a current address. Officer
Ladner said that two home visits were attempted and that the first visit was attempted
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approximately two months after the Defendant’s release from serving time in confinement
pursuant to a partial probation revocation. Her records reflected that the Defendant was
released on February 13, 2014, and that the Defendant had not reported to the probation
office since his release. The first home visit at the Defendant’s reported residence was
attempted because of his failure to report. She said that on April 16, 2014, the Defendant
was located at a different address with his grandmother and girlfriend. She said April 16,
2014, was the Defendant’s first contact with his probation officer since his release in
February. She said Officer Nicely also had difficulty locating the Defendant in 2013.
Officer Ladner testified that the Defendant owed court costs and restitution and that
the Defendant had never made a payment. She noted her records showed that in one of his
cases, the Defendant owed $31,150. The Defendant had not provided receipts reflecting any
payments, and he was required to provide his receipts. Office Ladner stated that this was the
third probation violation allegation against the Defendant.
Officer Ladner testified that on February 16, 2013, the Defendant participated in an
“ACRC” hearing to prevent another probation violation allegation. She said that as a result
of the ACRC hearing, the Defendant was required to seek substance abuse treatment but that
the Defendant did not comply. She said the Defendant had previously failed drug screens.
On cross-examination, Officer Ladner testified that the Defendant had not received
any new criminal charges since his release from confinement on February 13, 2014. She
agreed the violation report alleged technical violations but stressed the significance of the
Defendant’s failure to report to the probation office. She said that the Defendant would have
been released after midnight on February 13 and that no one from the probation office would
have talked to him at the jail. She said, though, the Defendant would have been instructed
at the November 14, 2013 revocation hearing to report to the probation office immediately
following his release.
Officer Ladner testified that the Defendant knew to go to the address listed on file
with the probation office upon his release from confinement. Relative to the attempted home
visit on April 8, 2014, Officer Ladner’s records showed that no one answered the door at
1:25 p.m. She said that as a result, the Defendant’s address could not be verified. She said
that when the probation officer returned to the address on April 16, the Defendant, his friend,
Rachel Brown, and his grandmother were present.
Officer Ladner testified that her usual procedure was to instruct defendants to report
to the probation office the day following their release from confinement and that probation
orders required defendants to report within seventy-two hours of their release. She noted the
Defendant’s previous experience with probation and said the Defendant knew to report to the
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probation office when he was released on February 13, 2014. She said that if a defendant
were released on a weekend, the defendant would have to contact his or her probation officer
by telephone and report to the probation office on Monday.
Officer Ladner testified that the probation office’s file did not show the Defendant had
telephoned Officer Nicely. Relative to the outstanding restitution, fees, and court costs, she
acknowledged the Defendant was declared indigent. She said, though, that the amounts
owed were ordered by the trial court. She said her practice was to tell defendants to pay
something each month to show an effort to fulfill the obligation, even if a payment was
nominal. She agreed the Defendant was arrested on April 25, 2014. Officer Ladner said that
the Defendant had sufficient time to find employment after his release and that many
probationers had been convicted of theft. She noted employers received tax incentives to hire
convicted felons and said the probation office was attempting to educate potential employers
about those incentives.
On redirect examination, Officer Ladner testified that the Defendant was arrested and
convicted of criminal offenses after being placed on probation in September 2012. On
recross-examination, she agreed a new criminal charge was not the basis for the current
revocation report. Relative to the Defendant’s failure to report, she said that even if the
Defendant had telephoned his probation officer, telephone calls did not equate to reporting
to the office. She said probationers were required to report in person at the probation office.
She said that finding the Defendant on April 16, 2014, constituted contact with the
Defendant, but it did not constitute reporting. On further redirect examination, she said the
only notation on the computer system relative to telephone calls was that an attempt to
contact the Defendant occurred on March 1, 2014, but she conceded the possibility that the
Defendant attempted to contact his probation officer.
Upon examination by the trial court, Officer Ladner testified that someone in the
Defendant’s circumstances who had been on probation previously would have been required
and told when to report to a probation officer. She said that although no official payment
plan existed for restitution, fees, and court costs, probation officers usually attempted to
calculate a monthly payment. She said that most defendants paid less, which was
satisfactory. She said, too, that if a defendant were unable to make a payment, she would not
file a probation violation report as long as the defendant reported and maintained contact.
Probation Officer Mitch Webb testified for the defense that he participated in the
April 16, 2013 home visit as a result of an unrelated investigation. He knew where the
Defendant lived before April 16 and said he had been to the home three or four times
previously. He agreed the Defendant’s grandmother told him that the Defendant lived there.
Officer Webb agreed that the Defendant was at the residence on April 16 and that the
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Defendant had not engaged in criminal activity. Officer Webb searched the Defendant, his
vehicle, and his home during his investigation and said he found nothing noteworthy.
On cross-examination, Officer Webb testified that he did not think he was aware the
Defendant had not reported to his assigned probation officer. He did not recall the
Defendant’s stating that he had attempted to contact his probation officer. Officer Webb did
not participate in the April 8, 2014 attempted home visit.
On redirect examination, Officer Webb testified that he told the Defendant to “get a
hold [of] your officer, and go report.” He said had the Defendant told him that he
unsuccessfully attempted to contact his supervising officer, Officer Webb would have told
the Defendant to report to the probation office because calling the office was not reporting.
He did not request the Defendant undergo a drug screen.
The trial court revoked the Defendant’s probation and ordered his sentence into
execution. The court stated its general practice was to inform a defendant that he or she was
required to report to an assigned probation officer. The court noted that in most cases,
defendants were required to make payments toward court costs and fees and that if a
defendant destroyed property, he or she was required to pay restitution. The court stated that
probation officers usually assisted a defendant in determining a monthly payment. This
appeal followed.
The Defendant contends that the trial court abused its discretion by revoking his
probation based upon the evidence presented at the hearing, although he does not explain
how the court’s order is an abuse of discretion. He requests this court place him on
community corrections or reduce his sentence to a partial probation revocation.
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.
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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 before the probation revocation report and warrant were issued
in the present case, the Defendant had received the benefit of probation on two previous
occasions. The Defendant violated the conditions of his release, and the trial court ordered
the Defendant to spend ninety days and six months, respectively, in confinement. Upon
release on February 13, 2014, the Defendant failed to report to his probation officer and to
keep his probation officer informed of his residence. The probation officer unsuccessfully
attempted to verify the Defendant’s address on April 8, almost two months after the
Defendant was released from confinement. Likewise, the Defendant failed to provide proof
of employment or his attempts to find employment, which presumably impacted his ability
to pay fees, court costs, and restitution. Officer Ladner testified that many probationers had
difficulty finding employment after being convicted of theft but that the Defendant was not
absolved of his obligation to attempt to find employment and to provide documentation
reflecting his attempts. As a result, the record supports the court’s finding that the Defendant
violated the conditions of his probation. Once the court properly revoked the Defendant’s
probation, it had the authority to order the Defendant’s sentence into execution. See T.C.A.
§§ 40-35-308(a), (c), -310. 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.
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ROBERT H. MONTGOMERY, JR., JUDGE
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