State of Tennessee v. Tosha Marie Silcox

08/22/2019

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

July 23, 2019 Session

STATE OF TENNESSEE v. TOSHA MARIE SILCOX

Appeal from the Circuit Court for Blount County

No. C-22754 David Reed Duggan, Judge

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No. E2018-02206-CCA-R3-CD

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Defendant, Tosha Marie Silcox, appeals from the trial court’s revocation of her probation

in November 2018. Without presenting the issue to the trial court, Defendant now

challenges the trial court’s 2016 probation revocation order, which modified Defendant’s

original 2014 sentence. The modified probation order required Defendant to serve a

sentence of split confinement for a period of one year and extended Defendant’s

probation. With regard to the 2018 revocation, Defendant argues that the State failed to

prove that Defendant disobeyed a lawful order of the probation officer and that she used

“abusive, threatening, or intimidating behavior” towards her probation officer. After

hearing oral argument and conducting a full review of the record, we affirm the judgment

of the trial court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and ROBERT L. HOLLOWAY, JR., JJ., joined.

Rick A. Owens, Alcoa, Tennessee, for the appellant, Tosha Marie Silcox.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant

Attorney General; Mike L. Flynn, District Attorney General; Tracy Jenkins, Assistant

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

OPINION

Factual and Procedural Background

In July of 2014, Defendant pleaded guilty to one count of identity theft.

Defendant received a four-year sentence, to be served on supervised probation. On July

25, 2016, the trial court found a material probation violation, extended Defendant’s

sentence three years from the date of the hearing, and ordered split confinement of one

year with the balance of the sentence to be served under the supervision of State

Probation and Parole.

On August 3, 2018, probation officer Bruce Paulson filed a probation violation

report alleging that Defendant violated her probation by disobeying instructions given by

her probation officer, refusing to provide a drug screen sample, falsifying a drug screen

by diluting the sample she provided to the testing officer, and engaging in abusive,

threatening, or intimidating behavior toward Officer Ashley Watson and Officer Paulson.

On August 6, 2018, based on the foregoing information, the trial court entered a violation

of probation warrant against Defendant.

At the hearing on the probation violation in November of 2018, Officer Watson

testified that on July 31, 2018, Defendant went to the Blount County probation office to

meet with her probation officer, Officer Paulson.1 Defendant was instructed to provide a

urine sample for drug screening. The first sample Defendant provided was not large

enough to be sent to the lab, and Officer Paulson instructed her to remain at the office

until she could produce another sample. Officers gave Defendant water to drink, and

Defendant attempted to produce a second sample. While attempting to produce the

second sample, Defendant asked for the water to be turned on in the bathroom. Officer

Watson denied her request. Defendant became aggressive; she yelled, screamed, and

cursed at Officer Watson. During this outburst, Defendant called Officer Watson an

“arrogant bitch” and “arrogant officer.” Officer Watson instructed Defendant to stop

talking and produce a sample. Despite being told not to leave the premises before the

drug screening was complete, Defendant left the premises without signing the form that is

sent with the sample to the lab. Defendant testified that she did not curse or behave

disrespectfully toward Officer Watson and that she sent Officer Paulson a text stating she

was leaving the office to go to work.

The trial court found that Defendant had materially violated the terms of her

probation. As a result, the trial court revoked Defendant’s probation and ordered her to

serve the original sentence. On December 11, 2018, Defendant filed a notice of appeal.

Analysis

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Officer Watson testified that Officer Paulson was no longer employed with the Department of

Correction Board of Probation and Parole at the time of the hearing.

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On appeal, Defendant challenges the July 25, 2016 partial revocation of probation,

in which the trial court ordered her to serve a split confinement of incarceration for one

year and extended her probation for three years. With respect to the November 19, 2018

decision, Defendant argues that the State failed to prove that she disobeyed a lawful order

and that she used abusive, threatening, or intimidating behavior.

I. 2016 Revocation

Defendant argues that Tennessee Code Annotated section 40-30-308(c) does not

allow a trial court, upon finding a material violation of the terms of probation, to order a

defendant to serve a split confinement of incarceration for a period of one year and, at the

same time, extend the probationary period for three years. Defendant also argues that the

July 2016 revocation constituted an illegal sentence under Tennessee Rule of Criminal

Procedure 36.1. The State replies that Defendant’s claim is not properly before this

Court. The State further replies that if this Court determines that the appeal is timely, the

trial court’s sentence was not illegal under Rule 36.1.

The current appeal is from the judgment filed on November 19, 2018, which was

the full revocation of probation. The November 2018 judgement only involved probation

violations from July 2018. The technical record does not contain any documentation with

regard to the probation violation or partial revocation from 2016. Although Defendant

attached a copy of the July 25, 2016 Violation Order as an exhibit to her brief, we cannot

consider it as it was not properly made a part of the record before this Court. See State v.

Matthews, 805 S.W.2d 776, 783 (Tenn. Crim. App. 1990); Tenn. R. App. P. 24(e).

“‘When a party seeks appellate review there is a duty to prepare a record which conveys a

fair, accurate and complete account of what transpired with respect to the issues forming

the basis of the appeal.’” State v. Clayton, 535 S.W.3d 829, 848 (Tenn. 2017) (quoting

State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993)); see Tenn. R. App. 24(b).

Moreover, Tennessee Rule of Appellate Procedure 4 states that an appeal as of

right shall be filed with the clerk of the appellate court within 30 days after the date of

entry of the judgment appealed from. Defendant’s notice of appeal with respect to the

July 2016 revocation is over two years late. While the timeliness of the notice of appeal

is not jurisdictional in criminal cases, it may only be waived in the interests of justice.

See State v. Rockwell, 280 S.W.3d 212, 214 (Tenn. Crim. App. 2007) (noting that

“[w]aiver is not automatic”). Because Defendant failed to include anything in the record

with respect to the July 2016 revocation, the interests of justice do not require this Court

to waive the timely filing of the notice of appeal. Thus, Defendant’s claims with respect

to the July 2016 revocation are not properly before this Court.

II. 2018 Revocation

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Defendant argues the State failed to prove that she disobeyed a lawful order of the

probation officer and failed to prove that she used abusive, threatening, or intimidating

behavior. The State replies that the trial court accredited the testimony of the probation

officer, which established that a violation of probation occurred. Additionally, the State

contends that Defendant admitted to leaving the premises without permission. Thus, the

trial court did not abuse its discretion by revoking Defendant’s probation in full.

Upon a finding by a preponderance of the evidence that a defendant has violated

the conditions of probation, the trial court “shall have the right . . . to revoke the

probation.” T.C.A. § 40-35-311(e)(1). After revoking a defendant’s probation, the trial

court is authorized to order a defendant to serve the balance of his original sentence in

confinement, return a defendant to probation with modified conditions as necessary, or

extend the period of probation by no more than two years. T.C.A. §§ 40-35-308, -310.

The revocation of probation rests in the sound discretion of the trial court and will not be

overturned by this Court absent an abuse of that discretion. State v. Harkins, 811 S.W.2d

79, 82 (Tenn. 1991); State v. Leach, 914 S.W.2d 104, 106 (Tenn. Crim. App. 1995); see

also State v. Pollard, 432 S.W.3d 851, 864 (Tenn. 2013) (holding that an abuse of

discretion standard with a presumption of reasonableness applies to all sentencing

decisions). An abuse of discretion occurs 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 also State v. Shaffer, 45 S.W.3d 553, 554 (Tenn. 2001). As this Court has

recognized, “[a d]efendant’s admission that he violated the terms of his probation, alone,

constitutes substantial evidence to support the revocation of probation.” State v. Ross

Pruitt, No. E2015-01494-CCA-R3-CD, 2016 WL 3342356, at *4 (Tenn. Crim. App. June

8, 2016) (citing State v. Christopher Nathaniel Richardson, No. M2006-01060-CCA-R3-

CD, 2007 WL 776876, at *4 (Tenn. Crim. App. Mar. 15, 2007), no perm. app. filed), no

perm. app. filed; see State v. Johnson, 15 S.W.3d 515, 518 (Tenn. Crim. App. 1999).

In this case, Officer Watson testified that Defendant used abusive, threatening, or

intimidating behavior and that Defendant left without receiving permission from Officer

Paulson. Defendant admitted that she did not receive permission from Officer Paulson to

leave but claimed that she sent him a text telling him she was leaving. The trial court

found Officer Watson’s testimony credible. Questions concerning the credibility of the

witnesses and the weight and value to be given to evidence, as well as all factual issues

raised by such evidence, are resolved by the trier of fact and not the appellate courts.

State v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). The rules of Defendant’s probation

prohibited her from engaging in any assaultive, abusive, threatening, or intimidating

behavior and required her to follow instructions given by her probation officer. The trial

court also noted the two prior violations of probation that had formed the basis of the

partial revocation in 2016. There is substantial evidence in the record to support the trial

court’s finding that Defendant violated the conditions of her probation by the way

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Defendant behaved while at her probation office on July 31, 2018. Therefore, the trial

court did not abuse its discretion by revoking Defendant’s probation and ordering her to

serve her sentence. Defendant is not entitled to relief.

Conclusion

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

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TIMOTHY L. EASTER, JUDGE

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