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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE
Assigned on Briefs October 1, 2002 STATE OF TENNESSEE v. JEROME F. SAWYERS
Direct Appeal from the Criminal Court for Davidson County No. 99-C-2175 Walter Kurtz, Judge

No. M2001-02878-CCA-R3-CD - Filed December 3, 2002

The defendant, Jerome F. Sawyers, pled guilty on July 16, 2001, to possession of cocaine less than .5 grams for resale and felony possession of a firearm and was sentenced, respectively, to six years and two years as a Range I, standard offender, with both sentences to be served concurrently. A violation of probation warrant was issued on August 8, 2001, alleging that he had violated probation by being in possession of a weapon and failing to report to his probation officer as ordered. Following a hearing, the trial court revoked the defendant's probation; and he timely appealed, arguing that the proof was insufficient that he had violated the terms of his probation. We conclude that the evidence supports the revocation of probation. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed ALAN E. GLENN, J., delivered the opinion of the court, in which DAVID H. WELLES and JAMES CURWOOD WITT, JR., JJ., joined. Justin Johnson, Nashville, Tennessee, for the appellant, Jerome F. Sawyers. Paul G. Summers, Attorney General and Reporter; Elizabeth B. Marney, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Brian Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION At the probation revocation hearing, William Coughlin testified that he had prepared and filed the probation violation warrant alleging that the defendant had violated the terms of his probation. He said that the defendant had not reported to him since being placed on probation and, reportedly, had been in possession of a weapon in violation of the probation order. Detective David Scott Wilder, of the Nashville Metropolitan Police Department K-9 Squad, said that on July 28, 2001, he had investigated a shooting in which the defendant was the victim. He had been asked to bring his dog to search the area where the defendant had been located, "roughly about half-a-mile, quarter of a mile" from the crime scene. At the second location, he found a "Smith & Wesson, 40

caliber, semi-automatic pistol," which had blood on it. A purple Cadillac, with several bullet holes, had rolled or crashed into a barrier at the crime scene. Several brass shell casings were found nearby, and there was blood in the Cadillac. A trail of blood began at the Cadillac and "went towards" the area where the pistol was found. The brass shell casings were of different calibers but some were .40 caliber, as was the pistol that was found twenty to thirty feet from where emergency personnel had found the defendant. Ray Crumby, Jr., a detective with the Metro Homicide Unit, said that he had investigated the shooting of the defendant and that shell casings from different weapons were found at the crime scene. He assumed the defendant's car had crashed into a gate restricting access to the apartment complex where the shooting occurred. Because of shell casings "right by the door" of the defendant's car, Crumby believed that the defendant had "returned fire." Blood was in the defendant's car, .40 caliber shell casings were found by his car, and nine-millimeter shell casings were found nearby. Beside one of the buildings in the apartment complex, "maybe, 75 yards away from" the defendant's car, was a "large amount" of shell casings from a "high powered assault-type rifle." Crumby said that he had spoken several times with the defendant, who said that "he believed he was set up." The defendant explained to Crumby what had occurred: When he went over to visit a friend that lived in the complex, as soon as she got out of the car, a white car pulled up on him, he had to drive around the white car, different people jumped out and started shooting at him from different angles, that's when he was trying to escape, and he rammed the purple Cadillac into the barrier. And as he was in the Cadillac, a gentlemen [sic] came up to him with a pump shot gun or a sawed off shot gun, shot him in the face. And then, [the defendant] was able to flee the Cadillac and run away. The defendant had said that, after being shot, he fled toward "Clarksville Highway," where he had been picked up by an ambulance. Crumby said he knew the defendant had a gun and told him so. In response, the defendant "didn't say anything, he just paused." The defendant did not say that anyone else had been shot. At first, the defendant was cooperative with Crumby, but, upon his release from the hospital, he "said he'd take care of it, or he said he didn't want to prosecute." ANALYSIS The authority of the trial court to revoke a suspended sentence is set out in Tennessee Code Annotated section 40-35-311(e) establishing that the preponderance of the evidence standard is utilized to determine whether the violation has been proven: If the trial judge should find that the defendant has violated the conditions of probation and suspension by a preponderance of the -2-

evidence, the trial judge shall have the right by order duly entered upon the minutes of the court, to revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered, or otherwise in accordance with

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