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State v. Somerville

Court of Criminal Appeals of Tennessee, Jackson

February 28, 2017

STATE OF TENNESSEE
v.
JESSE JAMES SOMERVILLE, IV

          Assigned on Briefs February 7, 2017

         Appeal from the Circuit Court for Tipton County No. 8302 Joe H. Walker, III, Judge

         The defendant, Jesse James Somerville, IV, appeals the order of the trial court revoking his probation and imposing his original sentence of eight years in confinement. Upon review of the record, we conclude the trial court did not abuse its discretion in finding that the defendant violated the terms of his probation. Accordingly, the judgment of the trial court is affirmed.

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

          Tracey A. Brewer-Walker, Ripley, Tennessee, for the appellant, Kelly Lynn Chandler.

          Herbert H. Slatery III, Attorney General and Reporter; Robert W. Wilson, Assistant Attorney General; D. Mike Dunavant, District Attorney General; and Jason Poyner, Assistant District Attorney General, for the appellee, State of Tennessee.

          J. Ross Dyer, J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and Camille R. McMullen, J., joined.

          OPINION

          J. ROSS DYER, JUDGE

         FACTS

         On January 8, 2016, after originally being indicted for one count of attempted first degree murder and one count of employing a firearm during the commission of a dangerous felony, the defendant entered a nolo contendere plea to the offense of attempted second degree murder and the remaining count was dismissed. The trial court suspended the defendant's original sentence of eight years in confinement and placed him on eight years of supervised probation effective January 8, 2016. The terms of probation required the defendant to obey all laws, maintain employment, and not engage in any assaultive, abusive, threatening, or intimidating behavior. Under the terms of probation, the defendant also agreed not to use or possess any illegal drugs or weapons.

         While on probation, the defendant was involved in additional criminal activity for which a probation violation warrant issued. The warrant alleged the defendant was arrested on February 16, 2016, and charged with four new offenses, including possession of a schedule VI drug with intent to sell, [1] possession of drug paraphernalia, possession of a firearm while in the commission of a dangerous felony, and felon in possession of a firearm. The warrant alleged that during the February arrest, the defendant engaged in intimidating behavior. Further, the warrant indicated the defendant failed a drug screen for THC on January 19, 2016. And finally, the warrant alleged technical violations of probation, including the defendant's failure to comply with his referral to a resource center program, failure to pay supervision fees, and failure to maintain lawful employment.

         The trial court held a joint violation of probation hearing for the defendant and co-defendant, Billy Joe Tipton. The State called two witnesses. Mark Winston, of the Board of Probation and Parole, outlined the defendant's probation file, noting the defendant failed a drug screen on January 19, 2016, failed to pay probation supervision fees, failed to comply with his referral to a resource center program, and failed to maintain employment.

         Covington police officer Michael Gan then testified regarding the defendant's February arrest. He explained that while on patrol with another officer in the area of Carr and Howard Streets, he saw four to five men run from a parked vehicle and into a house. One of the men was wearing white clothing. As the officers approached the parked vehicle, they smelled a heavy odor of marijuana. The officers then approached the house and heard the homeowner yelling at the men to get out of her home. Officers secured the perimeter of the house and ultimately arrested the defendant, Billy Joe Tipton, Ramel Jackson, and Royal Harvey, who lived in the home. According to Officer Gan, the defendant was the only arrestee wearing white clothing.

         After obtaining consent from the homeowner, the officers searched the home. In one of the bedrooms they located gang literature, marijuana, torn sandwich bags, and a 9mm Glock pistol with an extended magazine. The pistol was covered by a blue bandana and hidden in a chair. In the kitchen, officers found "a felony amount of marijuana." The owner of the home told officers the pistol was not hers. She also told officers she saw the defendant enter the bedroom and "reach down towards" the chair where the pistol was found. Officers then searched the parked vehicle which belonged to Ramel Jackson. Inside the vehicle officers found a glove that smelled ...


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