State of Tennessee v. Tiffany Nicole Nance ( 2011 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 27, 2011
STATE OF TENNESSEE v. TIFFANY NICOLE NANCE
Direct Appeal from the Criminal Court for Knox County
No. 90658B Richard Baumgartner, Judge
No. E2011-00492-CCA-R3-CD - Filed October 20, 2011
The Defendant, Tiffany Nicole Nance, pled guilty to theft of property valued under $500,
with an agreed sentence of eleven months and twenty-nine days to be served on probation.
A probation violation warrant was issued, and, after a hearing, the trial court revoked the
Defendant’s probation, finding that she had violated the terms of her probation. The court
ordered her to serve sixty days of her sentence in confinement, followed by a reinstatement
of her probation. On appeal, the Defendant contends the evidence is insufficient to sustain
the trial court’s revocation of her probation. After a thorough review of the record and
applicable law, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
R OBERT W. W EDEMEYER, J., delivered the opinion of the court, in which C AMILLE R.
M CM ULLEN, J., joined. J.C. M CL IN, J.,1 not participating.
Joshua D. Hedrick, Knoxville, Tennessee, for the Appellant, Tiffany Nicole Nance.
Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Randall E. Nichols, District Attorney General; and Keith Irvine, Assistant District
Attorney General, for the Appellee, State of Tennessee.
OPINION
I. Facts
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The Honorable J.C. McLin died September 3, 2011, and did not participate in this opinion. We
acknowledge his faithful service to this Court.
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This case arises from the Defendant’s theft of property from a Marshall’s store in
Knox County in May 2008. In February 2010, the Defendant pled guilty to theft of property
valued under $500, a Class A misdemeanor, with an agreed sentence of eleven months and
twenty-nine days to be served on probation. In October 2010, the Defendant’s probation
officer filed a probation violation warrant, alleging that the Defendant had violated her
probation sentence by: (1) being arrested for disorderly conduct on September 10, 2010; (2)
being arrested for aggravated assault and vandalism on September 30, 2010; (3) and failing
to provide proof of payment of court costs and probation fees.
At a revocation hearing on November 11, 2010, Officer Colin McLeod of the
Knoxville Police Department testified that he investigated an incident on September 28,
2010, that involved the Defendant. Officer McLeod interviewed the victim, Kenneth
Lorenzo Jackson, at the hospital, describing his impressions of the victim during the
interview as follows: “My impressions were that he was in fear for his safety, that he was
injured, and he had a very strong odor of bleach on his person. I could not at that time
determine if he was intoxicated.” During this interview Jackson told the officer that the
Defendant was his girlfriend and that the two had been in an argument about Jackson’s use
of an ex-girlfriend’s car. Jackson described the argument as growing “heated,” and he said
the Defendant pulled out a folding knife and chased him around the yard of his house while
swinging the knife at him. Officer McLeod recalled that Jackson gave a “detailed
description” of the knife as a black-handled folding knife. While Jackson did not initially
realize it, the Defendant at some point cut Jackson on his right arm.
Officer McLeod testified that Jackson told him that, during the argument, the
Defendant ran inside Jackson’s house and returned with a cup of bleach. The Defendant
threw the cup of bleach at Jackson, and it landed on his shirt. Jackson explained that, by this
point, he had grown angry with the Defendant, so he spit on her. Thereafter, the Defendant
went inside Jackson’s house and placed a phone call, after which her three sons arrived and
began yelling at Jackson. Officer McLeod recalled that Jackson told the officer that he shut
the front door and physically held it closed because the door lock was broken. At some
point, seven rounds were fired from the outside of the house through the front door, with one
round striking Jackson’s left forearm. Jackson said that the Defendant’s three sons then fled
in two cars.
Officer McLeod testified that Jackson did not make any statement as to the
Defendant’s whereabouts during the shooting. Based on other witness statements, however,
the officer believed the Defendant was waiting in the second of two cars, both of which fled
the scene after the shooting.
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After interviewing Jackson, Officer McLeod went to the scene and found evidence
supporting Jackson’s statement regarding the incident. Officer McLeod found a shirt
covered in bleach, a blue plastic cup that appeared to have bleach in it, six shell casings in
the front yard, and seven bullet holes in the front door and adjacent wall.
Officer McLeod testified that he interviewed several witnesses while at the scene, one
of whom was Jackson’s roommate. Jackson’s roommate told the officer that he had heard
the Defendant and Jackson arguing and saw the Defendant run outside with bleach. Later,
after shots were fired, the roommate heard Jackson yelling for him to call 911. Officer
McLeod said that he also interviewed two witnesses that were across the street from the
residence during the argument and shooting. These two witnesses were unable to identify
the suspects that were involved but recounted the incident consistent with the victim’s
statement to Officer McLeod. They also said that a white vehicle and a black vehicle fled
the scene. Officer McLeod testified that Jackson had told him that the Defendant drove a
white vehicle.
On cross-examination, Officer McLeod agreed that he could not confirm the identity
of the person the Defendant called from inside Jackson’s house shortly before her three sons
arrived. Officer McLeod also agreed that no one alleged that the Defendant had a weapon
or fired any of the shots at Jackson. Officer McLeod explained that the aggravated assault
charge was based on the knife the Defendant used against the victim.
Jackson testified that he initially believed the Defendant had a knife but found out the
next day that “she didn’t have no knife.” Jackson explained that he cut his arm on the door
while being chased by the Defendant. At this point in Jackson’s testimony, the trial court
continued the hearing for a week to give Jackson an opportunity to speak with an attorney
before testifying. On November 18, 2010, the parties reconvened and defense counsel
continued direct examination of Jackson. Jackson testified that he had been drinking alcohol
the night of this incident, and he and the Defendant “got into a little argument.” Jackson
recalled that he was “talkin’ crazy” to the Defendant and calling her a “b***h.” Jackson
denied that the Defendant pulled out a knife and said that she pulled out “a little key chain”
and began chasing him with it. Jackson said that he ran back inside his house and his shirt
got caught on a nail which caused the cut on his arm. He said he told Officer McLeod at the
hospital that the Defendant cut him with a knife, because “I was upset; I was mad.” He then
testified that he told the officer the Defendant cut him with a knife because he thought that
was what had happened.
Jackson gave the following testimony in explaining the bleach found on his clothing:
Well, she wasn’t tryin’ to throw bleach on me in my face. She was throwin’
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bleach on the clothes she bought for me. You know, she bought me some
clothes and went to Players. And she like, “You ain’t gonna get my clothes
and take off with them either.” And she throw bleach on the clothes. It wasn’t
on my face or nothin’. It was just like on my shoes and stuff like at the bottom
‘cause - - she could have throwed it in my face but she didn’t.
Jackson testified that he did not know who the Defendant called that day and that he
did not hear any of the conversation. He later learned that the Defendant called her son’s ex-
girlfriend and not her son. The Defendant told her son’s ex-girlfriend about the argument,
and it was the son’s ex-girlfriend who then contacted the Defendant’s son and told him he
should go to the victim’s house. Jackson confirmed that it was one of the Defendant’s sons
that shot him, and he defended the shooting saying, “I would come to my mother’s rescue if
somebody tell me somebody spit on my mother.”
At the conclusion of this hearing, the trial court found that the Defendant had violated
her probation for assaulting Jackson with a knife and ordered her to serve sixty days in
custody with the remainder of her sentence to be served on probation. It is from this
judgment that the Defendant now appeals.
II. Analysis
The Defendant contends the trial court erred when it revoked her probation and
ordered her to serve sixty days in custody. The Defendant argues that there was insufficient
evidence of her conduct at the hearing to support a revocation of her probation on the
subsequent arrest. The State responds that the trial court properly revoked the Defendant’s
probation and ordered her to serve sixty days of her sentence in confinement. We agree with
the State.
When a trial court determines by a preponderance of the evidence that a probationer
has violated the conditions of his or her probation, the trial court has the authority to revoke
probation. T.C.A. § 40-35-311(e) (2009). Upon finding that the defendant has violated the
conditions of probation, the trial court may revoke the probation and either: (1) order
incarceration; (2) order the original probationary period to commence anew; or (3) extend
the remaining probationary period for up to two additional years. State v. Hunter, 1 S.W.3d
643, 644 (Tenn. 1999); see T.C.A. §§ 40-35-308, -310, -311 (2009). The defendant has the
right to appeal the revocation of his probation and entry of his original sentence. T.C.A. §
40-35-311(e)(2). After finding a violation, the trial court is vested with the statutory
authority to “revoke the probation and suspension of sentence and cause the defendant to
commence the execution of the judgment as originally entered . . . .” T.C.A. § 40-35-
311(e)(1); accord Hunter, 1 S.W.3d at 646 (holding that the trial court retains the
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discretionary authority to order the defendant to serve his or her original sentence in
confinement). Furthermore, when probation is revoked, “the original judgment so rendered
to be in full force and effect from the date of the revocation of the suspension . . . .” T.C.A.
§ 40-35-310 (a) (2009).
The decision to revoke probation is in the sound discretion of the trial judge. State
v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005); State v. Mitchell, 810 S.W.2d
733, 735 (Tenn. Crim. App. 1991). This Court will uphold a trial court’s judgment to revoke
probation unless the trial court abused its discretion. State v. Harkins, 811 S.W.2d 79, 82
(Tenn. 1991). To find an abuse of discretion in a probation revocation case, the record must
be void of any substantial evidence that would support the trial court’s decision that a
violation of the conditions of probation occurred. Id.; State v. Grear, 568 S.W.2d 285, 286
(Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980).
When the violation alleged in a probation warrant is the commission of a new offense,
the State must present sufficient facts to enable the trial court to make a proper judgment as
to whether the conduct in question violated the law. Harkins, 811 S.W.2d at 83 n.3. While
pending charges can be the basis for a revocation of probation, a trial court may not rely upon
the arrest or the indictment alone to revoke the probation. See State v. Adams, 650 S.W.2d
382, 383 (Tenn. Crim. App. 1983). A police officer’s testimony about the facts surrounding
an arrest may be sufficient to support a trial court’s revocation of probation. State v. Eric L.
Abell, No. M2006-01981-CCA-R3-CD, 2007 WL 2088949, at *5 (Tenn. Crim. App., at
Nashville, July 23, 2007) no Tenn. R. App. P. 11 application filed.
In the present case, the trial court made the following findings when it revoked the
Defendant’s probation:
There is no question in my mind that there was a verbal altercation between
[the victim] and [the Defendant]. That . . . [the Defendant] chased [the victim]
around with something. I don’t believe it’s a bottle opener. I think it was
some form of a knife. It may have been on a key chain, but it was a knife. It
wasn’t a bottle opener. And I believe she cut him with that. I believe he spit
on her, which is a very disgusting thing for anybody to do. And I do believe
she [] threw bleach on him.
....
So what . . . I’m left [with] is clearly – clearly [the Defendant] is engaged in
conduct that she should not have been engaged with. I believe she cut [the
victim].
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....
So I’m going to find you’re in violation of your probation for what I believe
to be an assault on [the victim] with a knife, and I’m going to order you to
serve sixty days in custody.
In this case, the record supports the trial court’s finding that the Defendant violated
the terms of her probation. Officer McLeod testified that he interviewed Jackson at the
hospital after the altercation, and Jackson informed Officer McLeod that the Defendant
chased him through the yard with a black-handled folding knife. Officer McLeod observed
a cut on Jackson’s upper right arm consistent with his story that the Defendant cut him with
a knife. Although, Jackson later recanted some of his prior statements to the officer, Jackson
agreed that the Defendant was chasing him during the course of an argument. Thus the
evidence supports the trial court’s finding that the Defendant assaulted the victim with a
knife. The record therefore establishes that the Defendant failed to comply with the terms
of her probation. Based on the foregoing, we conclude that the record contains “substantial
evidence” that the Defendant violated the terms of her probation. See Harkins, 811 S.W.2d
at 82.
The Defendant complains that there was not sufficient evidence to revoke her
probation with respect to her vandalism charge; however, upon review of the record, the trial
court based the revocation on the aggravated assault charge and not the vandalism charge.
As we have already concluded, the trial court had sufficient evidence to find that the
Defendant, based upon the aggravated assault charge, violated the conditions of her
probation. As such, we conclude that the trial court’s revocation of the Defendant’s
probation was not an abuse of discretion. The Defendant is not entitled to relief.
III. Conclusion
Based on the foregoing reasoning and authorities, we conclude the trial court properly
revoked the Defendant’s probation. As such, we affirm the judgment of the trial court.
_________________________________
ROBERT W. WEDEMEYER, JUDGE
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