State of Tennessee v. Desmond Eugene Davis

05/11/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

March 21, 2017 Session

STATE OF TENNESSEE v. DESMOND EUGENE DAVIS

Appeal from the Criminal Court for Hamilton County

No. 275410 Barry A. Steelman, Judge

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No. E2016-01608-CCA-R3-CD

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The Defendant, Desmond Eugene Davis, pled guilty to aggravated assault and was

sentenced to eight years on probation. A violation of probation warrant was issued

against the Defendant. Following a hearing, the trial court revoked the Defendant’s

probation and ordered him to serve his sentence in prison. The Defendant appeals. After

a thorough review of the record and applicable law, we affirm the judgment of the trial

court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which TIMOTHY L.

EASTER and J. ROSS DYER, JJ., joined.

Robin Ruben Flores, Chattanooga, Tennessee, for the appellant, Desmond Eugene Davis.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant

Attorney General; Neal Pinkston, District Attorney General; and Kevin Brown, Assistant

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

OPINION

FACTUAL AND PROCEDURAL HISTORY

A Hamilton County grand jury indicted the Defendant on attempted first degree

murder and employment of a firearm during a dangerous felony. On October 11, 2010,

pursuant to a guilty plea, the Defendant was convicted of aggravated assault and

sentenced to eight years on probation, which the trial court ordered to be served

consecutively to another conviction. On April 28, 2015, the Defendant’s probation

officer filed a violation of probation report, alleging that the Defendant was arrested on

two new counts of aggravated assault in 2014, failed to report the new arrests, possessed

a firearm, and exhibited threatening behavior towards others. Following a hearing, the

trial court partially revoked the Defendant’s probation, finding that the Defendant

violated his probation and ordering him to serve six months in incarceration and the

remainder of the sentence on probation.

On February 1, 2016, after the Defendant’s partial revocation of probation and

release from incarceration, the Defendant was arrested for unlawful possession of a

weapon, driving on a revoked license, and theft. Subsequently, the Defendant’s

probation officer filed a second violation of probation warrant, alleging that the

Defendant had new arrests from February 1, 2016, did not report the new arrests,

possessed a firearm, failed to consent to a vehicle search by police, and failed to pay his

fees for probation. On May 16, 2016, he pled guilty to unlawful possession of a firearm

and theft from the arrests of February 1, 2016, and was sentenced to eleven months and

twenty-nine days for each of the convictions.

On July 18, 2016, at the revocation of probation hearing, Christina Barnes, a

probation and parole officer with the Tennessee Department of Correction, testified as to

the details of the Defendant’s time on probation. She testified that while on probation,

the Defendant was “generally” employed and reported to his probation officer. The trial

court asked Officer Barnes whether she was aware of two arrests from 2014 as described

in the first violation of probation report. Although Officer Barnes was not able to provide

further information regarding the 2014 arrests, the State explained to the trial court that

the associated charges from 2014 were dismissed upon the Defendant’s partial revocation

of probation in 2015. According to the violation of probation report, on two separate

occasions in 2014, the Defendant unlawfully possessed a firearm and acted in an abusive,

assaultive, threatening, or intimidating manner toward two different victims.

Ms. Carla Howard, the Defendant’s mother, testified on the Defendant’s behalf.

She testified that the Defendant had one child and that he provided for his child, his

girlfriend, and his girlfriend’s child. She said that the Defendant maintained employment

during his probation. She stated that he assisted her and that family was important to the

Defendant. The Defendant introduced several exhibits of photographs of his family,

noting that the goal of introducing the exhibits was to give the trial court an idea of the

Defendant’s life. Ms. Howard testified that the Defendant earned his GED and played

recreational football while in school.

Following arguments, the trial court summarized the Defendant’s procedural

history. The trial court mentioned the Defendant’s 2014 dismissed charges and 2015

partial revocation, noting that it would not “go into what was alleged there because he

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didn’t plead guilty to that and the cases were dismissed, but they were violent acts that

were alleged.” The trial court expressed concern over the facts underlying the

Defendant’s 2014 arrests but stated that the court was unsure whether the Defendant

committed those acts because the charges were dismissed. After reviewing the

underlying facts of the 2016 unlawful possession of a firearm and theft convictions, the

trial court found, by a preponderance of the evidence, that the Defendant’s 2016

possession of a firearm for which he pled guilty was a violation of his probation. The

trial court noted sympathy for Ms. Howard’s testimony. The trial court also noted the

facts underlying the Defendant’s 2010 guilty plea, reading from a police report that

described the Defendant burglarizing the victim’s home and firing two gunshots at the

victim. The trial court pointed to the violent nature of the underlying offense and the

need to protect society. At the conclusion of the hearing, the trial court revoked the

Defendant’s probation and ordered him to serve his sentence in incarceration.

ANALYSIS

On appeal, the Defendant argues that the trial court abused its discretion when

revoking his probation by relying on improper grounds. The State contends that the trial

court did not rely on improper grounds and had substantial evidence to revoke the

Defendant’s probation. We agree with the State.

A trial court may revoke a sentence of probation if it determines by a

preponderance of the evidence that the conditions of probation have been violated.

T.C.A. § 40-35-311(e). The trial court’s decision to revoke the defendant’s probation is

reviewed for abuse of discretion. State v. Shaffer, 45 S.W.3d 553, 554 (Tenn.

2001); State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). Abuse of discretion is found

when the appellate court determines that the trial court “applies incorrect legal standards,

reaches an illogical conclusion, bases its ruling on a clearly erroneous assessment of the

proof, or applies reasoning that causes an injustice to the complaining party.” State v.

Phelps, 329 S.W.3d 436, 443 (Tenn. 2010). Reversal of a revocation is only warranted if

“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.

Proof of the violation is adequate when it provides the basis for a “conscientious and

intelligent” judgment. Id. The trial court’s findings of fact and determinations regarding

the credibility of witnesses carry the weight of a jury verdict. State v. Beard, 189 S.W.3d

730, 735 (Tenn. Crim. App. 2005). Accordingly, the trial court’s findings are binding on

the appellate court unless the evidence preponderates otherwise. State v. Lewis, 917

S.W.2d 251, 257 (Tenn. Crim. App. 1995).

The Defendant contends that the trial court abused its discretion by (1) considering

the Defendant’s 2014 arrests; (2) considering the State’s explanation of the disposition of

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the dismissed 2014 arrests at the revocation hearing as evidence; (3) depriving the

Defendant of procedural due process by asking Officer Barnes about the 2014 arrests;

and (4) re-litigating the Defendant’s 2015 revocation of probation. During the violation

of probation hearing, the trial court noted the Defendant’s 2014 arrests and 2015 partial

revocation of probation but stated that it would not consider the arrests because they were

dismissed. The trial court also noted the underlying facts of the Defendant’s 2016 guilty

plea convictions for theft and unlawful possession of a firearm. The trial court found that

because the Defendant was in possession of a firearm, he had violated his probation. We

note that the trial court only relied on the weapons possession in revoking the

Defendant’s probation. There is nothing in the record to preponderate against the trial

court’s finding that the Defendant was in possession of a firearm and, thus, had violated

his probation. See Lewis, 917 S.W.2d at 271. The Defendant pled guilty to this charge.

We hold that because the trial court had substantial evidence to support its conclusion,

reversal of its revocation is unwarranted. Phelps, 329 S.W.3d at 443.

CONCLUSION

Based on the foregoing analysis, we affirm the judgment of trial court.

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JOHN EVERETT WILLIAMS, JUDGE

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