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State v. Johnson

Court of Criminal Appeals of Tennessee, Nashville

March 13, 2017

STATE OF TENNESSEE
v.
TOMMY TYRELL JOHNSON

          Assigned on Briefs at Knoxville February 23, 2017

         Appeal from the Circuit Court for Rutherford County No. F72715 David Bragg, Judge

         The Defendant, Tommy Tyrell Johnson, appeals the Rutherford County Circuit Court's order revoking his probation for his theft conviction and ordering him to serve his four-year sentence in confinement. T he 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

          Gerald L. Melton, District Public Defender, and John Driver, Assistant Public Defender, for the appellant, Tommy Tyrell Johnson.

          Herbert H. Slatery III, Attorney General and Reporter; Ruth Anne Thompson, Senior Counsel; Jennings Hutson Jones, District Attorney General; and Sara N. Davis, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which James Curwood Witt, Jr., and D. Kelly Thomas, Jr., JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         On November 21, 2014, the Defendant pleaded guilty to theft of property valued at more than $1, 000, and the trial court sentenced the Defendant to four years' probation. On August 11, 2015, a probation violation report was filed with the trial court, alleging that the Defendant had been arrested for drug-related and firearm-related charges. The report also alleged he failed to report his arrest to his probation officer, failed to obtain employment and to attend a job fair, failed to attend Narcotics Anonymous and Alcoholics Anonymous meetings, had been discharged from "CADAS" because of his resistance in group meetings and minimal motivation to change his behavior, failed a drug screen by testing positive for marijuana and cocaine, and failed to make p ayments toward supervision fees and court fines. On August 12, 2015, a probation violation warrant was issued.

         At the revocation hearing, Chattanooga Police Officer Ryan Vanderpool testified that on August 11, 2015, he initiated a traffic stop of a car in which the Defendant was a passenger. Officer Vanderpool explained that he initiated the traffic stop because the car matched the description and license plate number of a car that had fled from police the previous day. O fficer Vanderpool stated that he smelled the odor of marijuana coming from the car as he spoke to the driver and the Defendant, that he searched the car based upon the smell, and that he found marijuana inside the glove box. Officer Vanderpool said that he asked the Defendant and the driver about the marijuana and that the Defendant admitted the marijuana belonged to him. Officer Vanderpool said he continued searching the glove box and found a bag containing what the Tennessee Bureau of Investigation (TBI) later determined was cocaine. Officer Vanderpool said that the Defendant and the driver denied owning the cocaine.

         Officer Vanderpool testified that he continued searching the car, that he found an empty gun holster lying on the floorboard "behind the front passenger seat, " and that the Defendant and the driver acted as though they did not know a gun was inside the car. Officer Vanderpool said that he found a nine-millimeter firearm between the front passenger seat and the center console and that the Defendant and the driver denied owning the gun. Officer Vanderpool stated that after a short period of time, the Defendant admitted that all of the drugs and the gun belonged to him.

         Officer Vanderpool testified that the TBI analyzed the drugs and determined the marijuana weighed 16.76 grams and the cocaine weighed 2.37 grams. H e said that although the Defendant denied he was employed, the Defendant was carrying $615 in cash. Officer Vanderpool said that the Defendant was charged with three felony offenses, which were pending before the Hamilton County Criminal Court at the time of the revocation hearing.

         On cross-examination, Officer Vanderpool testified that the traffic stop was video recorded and that the Defendant's admissions could be heard in the recording. Officer Vanderpool said that he did not read the Defendant his Miranda rights before the search but that he read them before asking if the drugs and the gun belonged to the Defendant. Officer Vanderpool said that he searched the Defendant because he had probable cause to believe the Defendant possessed marijuana based upon the odor coming from the car.

         Rutherford County Probation Officer Kayla Banks testified that the Defendant's probation was transferred from Rutherford County to Hamilton County and that the Defendant's release was supervised by a Hamilton County probation officer. She said that the Defendant tested positive for drugs on December 5, 2014, and April 7, 2015. She confirmed that a laboratory report showed the presence of marijuana and cocaine on April 7, 2015. She said that as a condition of his probation, the Defendant was required to attend CADAS, a drug and alcohol treatment program, in Chattanooga and that the ...


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