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State v. Nelson

Court of Criminal Appeals of Tennessee, Jackson

June 26, 2019


          Assigned on Briefs May 7, 2019

          Appeal from the Circuit Court for Dyer County No. 16-CR-358 Lee Moore, Judge

         The Defendant, Damarcus C. Nelson, [1] 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.

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

          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 of Tennessee.

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




         The 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.

         Thereafter, 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.

         The 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 14.

         At the subsequent revocation hearing, the Defendant's probation officer, Tamiko Manns, [2] 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.

         Officer 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.

         Officer 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.

         Dyersburg 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[.]"

         These 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 ...

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