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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON
Assigned on Briefs November 7, 2001 STATE OF TENNESSEE v. TERRANCE ROGERS
Direct Appeal from the Circuit Court for Madison County No. 98-80 Roy B. Morgan, Jr., Judge

No. W2001-00528-CCA-R3-CD - January 15, 2002

Defendant, Terrance Rogers, appeals the revocation of his community corrections sentence. Defendant contends that the court erred by revoking his sentence for failing to report a new arrest, and for the alleged possession of cocaine. After a thorough review of the record, we affirm the judgment of the trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed. THOMAS T. WOODALL , J., delivered the opinion of the court, in which GARY R. WADE, P.J., and JOE G. RILEY, J., joined. George Morton Googe, District Public Defender; and Stephen P. Spracher, Assistant Public Defender, Jackson, Tennessee, for the appellant, Terrance Rogers. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General; James G. Woodall, District Attorney General; and Jody S. Pickens, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION In September 1998, the Defendant entered a plea of guilty to Class D felony vandalism and was placed on deferred probation for a period of four (4) years, pursuant to Tennessee Code Annotated section 40-35-313. After violating his probation in numerous ways, in November 2000, Defendant's deferred probation was revoked and judgment was entered reflecting a conviction for Class D felony vandalism. Defendant was sentenced to four (4) years in the Department of Correction. However, Defendant was ordered to serve the sentence in the Madison County Community Corrections program. A violation report was filed by Defendant's community corrections supervisor. The report, which was entered as an exhibit without objection, charged the Defendant with violating his "behavioral contract." The relevant portion of Defendant's "behavioral contract" stated "I will remain arrest, drug, and alcohol free. I will report all arrests, including traffic citations, the next

working day. I will obey the laws of the United States or any State in which [I] may be as well as any municipal ordinances." According to the violation report, Defendant was arrested on January 19, 2001 for possession of Schedule II drugs and he failed to report his new arrest to his community corrections supervising officer. The revocation hearing was held on February 20, 2001. The testimony at the revocation hearing was sparse, but straightforward. Defendant did not testify. However, his community corrections supervisor, Shirley Cerrato, did testify. Ms. Cerrato testified that she had been supervising the Defendant since approximately November 20, 2000, and that he had never reported any new arrests. Her report, quoted from above, was admitted into evidence during her direct examination. During cross-examination, Ms. Cerrato reiterated that she never received any phone call or any other message from the Defendant concerning his arrest for possession of Schedule II drugs. However, she testified that she was notified of Defendant's arrest by the "jail list" that was sent to her office on the morning after his arrest. There was no testimony at the hearing as to whether Defendant was released on bail following his arrest on charges of possession of Schedule II drugs, or whether he remained incarcerated up until the time of the revocation hearing. Ms. Cerrato acknowledged that the community corrections office has a "block" on its phone to prevent calls from the Madison County Jail to the community corrections office. She testified that some offenders on community corrections who are arrested and placed in the Madison County Jail make "three-way" calls to communicate with their supervising officers. Madison County Sheriff's Deputy Fenn (no first name was provided in the record) testified that in January 2001, he assisted another deputy in a traffic stop in Madison County. While at the traffic stop, Deputy Fenn came in contact with the Defendant and conducted a pat-down search of Defendant. Deputy Fenn testified on direct examination, without objection being made by Defendant, that he found a plastic baggie which contained crack cocaine in Defendant's left shoe. During cross-examination, the deputy acknowledged that he did not perform a field test on the substance which he believed to be crack cocaine. During redirect examination, the State elicited testimony from Deputy Fenn concerning his prior experience as a law enforcement officer in coming in contact with crack cocaine. Finally, Defendant's counsel objected to the officer being able to testify as an expert. The trial court overruled the Defendant's objection. Continuing redirect examination, Deputy Fenn described the substance which he believed to be crack cocaine as a small rock, light yellow in color. During closing arguments, Defendant's counsel argued that the court should not consider any evidence pertaining to possession of drugs because competent proof had not been submitted that the substance found in the shoe was a Schedule II drug. However, at no point did defense counsel, prior to closing arguments or during closing arguments, move the court to strike Deputy Fenn's direct examination testimony for any reason. There was no proof that Defendant had been convicted of possession of crack cocaine at the time of the revocation hearing. In fact, the trial court stated that Defendant had not yet been convicted of any drug offense resulting from the January 2001 incident.

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ANALYSIS Revocation procedures for probation and community corrections are treated similarly. See State v. Harkins, 811 S .W.2d 79, 82 (Tenn. 1991); cf. State v. Taylor, 992 S.W.2d 941, 945 (Tenn. 1999). Thus, to revoke a community correction sentence the trial judge must find that the offender violated a term of his probation by a preponderance of the evidence. See Harkins, 811 S.W.2d at 82 (citing Tenn. Code Ann.

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