Assigned on Briefs May 7, 2019
from the Circuit Court for Dyer County No. 16-CR-358 Lee
Defendant, Damarcus C. Nelson,  appeals as of right from the Dyer
County Circuit Court's revocation of his probation and
reinstatement of the remainder of his four-year sentence for
solicitation of aggravated assault. On appeal, the Defendant
asserts that the trial court abused its discretion because
the State failed to establish by a preponderance of the
evidence that he violated the law or participated in
gang-related activity, and he maintains that the remaining
"technical" violations did not warrant
incarceration. Following our review, we affirm the judgment
of the trial court.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Matthew A. Beaird, Dyersburg, Tennessee, for the appellant,
Damarcus C. Nelson.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Danny H.
Goodman, Jr., District Attorney General; and Karen W. Burns,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall and James Curwood Witt, Jr., JJ.,
KELLY THOMAS, JR., JUDGE
Defendant was initially indicted for attempted first degree
murder. See Tenn. Code Ann. § 39-13-202. On May
30, 2017, he pled guilty to solicitation of aggravated
assault as a Range II, multiple offender and received a
four-year sentence to be served on supervised probation.
See Tenn. Code Ann §§ 39-12-102, -13-102.
This sentence was to be served consecutively "to all
other offenses." It was also noted that the Defendant
had "two priors" of facilitation of second degree
murder which occurred on the same day.
the Defendant's probation officer filed a probation
violation report against the Defendant on January 30, 2018.
It was alleged therein that the Defendant violated Rule 1 of
his probation by failing "to obey the law" due to
his January 4, 2018 arrest for possession of marijuana with
the intent to sell and for tampering with evidence. The trial
court issued a warrant that same day.
Defendant's probation officer filed an updated violation
report on May 10, 2018. This time it was alleged that the
Defendant had violated the conditions of his probation by not
providing "proof of employment, seeking employment[, ]
or disability" for the months of January to April 2018
violating Rule 4; by not reporting to his probation officer
during February or March of 2018 violating Rule 6; by not
paying his arrearages of fines, court costs, or supervision
fees totaling $862 violating Rule 9; and by being an active
member of a gang known as the Kitchen Crips violating Rule
subsequent revocation hearing, the Defendant's probation
officer, Tamiko Manns,  testified and discussed the
Defendant's violations. She reviewed the two violation
reports and the details presented therein. Officer Manns
noted that at the beginning of the Defendant's
supervision on March 30, 2017, she reviewed the conditions of
the Defendant's probation with him and said that he
signed a copy of those rules. His probation order was entered
as an exhibit.
Manns stated in the history of supervision section on the
Defendant's first violation report that the Defendant had
previously tested positive for marijuana on July 13, 2017,
and that he was referred for an alcohol and drug assessment.
According to Officer Manns, the Defendant reported for that
assessment, and it was determined at that time that he did
not have a drug problem.
Manns stated that the Defendant had not provided any proof of
a "legitimate source of income" since his probation
commenced on May 30, 2017. Officer Manns further testified
that she had not excused any of the Defendant's missed
meetings. She noted that the Defendant had provided proof
that he was seeking employment and had paid some of his fines
and court costs in the past. Officer Manns agreed that she
would normally impose sanctions short of jail time for the
Defendant's "technical" violations, which
violations did not start until after the Defendant's
January 4, 2018 arrest.
Police Department Officers Mason McDowell and Sterling Wright
testified regarding the Defendant's drug and gang-related
activity while on probation. Officer McDowell was qualified
as an expert in dealing with "street crime and the drugs
and gang . . . information[.]"
officers testified that, on August 16, 2017, they were
cruising in Officer Wright's unmarked police vehicle in
the area of the Defendant's residence at 1641 Countryman
Street. Based upon their prior interactions with the
Defendant, they both believed that the Defendant resided at
this address with his girlfriend, Contrera Crittenden. The
Defendant and Ms. Crittenden had been together for a long
time, had several children together, and had lived together
at each residence "until just most ...