06/10/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs May 3, 2022
STATE OF TENNESSEE v. DANIEL LEON MCCAIG
Appeal from the Circuit Court for Dyer County
No. 17-CR-419 R. Lee Moore, Jr., Judge
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No. W2021-00736-CCA-R3-CD
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Daniel Leon McCaig, Defendant, pled guilty to several offenses in 2018 and received a
sentence to be served on Community Corrections. After a partial revocation of his
alternative sentence in 2020, Defendant was arrested for new charges two separate times
in 2021. As a result of the new charges, two probation violation reports were filed. After
a hearing, the trial court revoked Defendant’s probation and reinstated his eight-year
sentence with credit for time served. Defendant appeals the revocation. After a de novo
review, we affirm the revocation of probation.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR. and CAMILLE R. MCMULLEN, JJ., joined.
Mitchell Raines, Assistant Public Defender – Appellate Division (on appeal); and James
E. Lanier, District Public Defender and Martin Howie, Assistant District Public Defender
(at hearing), for the appellant, Daniel Leon McCaig.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Danny L. Goodman, District Attorney General; and Karen Burns,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
In 2007, Defendant pled guilty to attempted aggravated sexual battery in Dyer
County. As a result, he was sentenced to five years in incarceration with time served and
released to supervised probation. Defendant was required to register as a sex offender and
was subject to community supervision for life.
Defendant was indicted by the Dyer County Grand Jury in December of 2017 for
three counts of selling more than .5 grams of methamphetamine. Defendant pled guilty to
the charges on March 20, 2018, in exchange for three, concurrent, eight-year sentences.
Defendant was ordered to serve the sentences on Community Corrections.
In January of 2020, a probation violation report was filed. This report does not
appear in the record, but an order entered on August 25, 2020, by the Dyer County Circuit
Court indicates that Defendant acknowledged the violation and agreed to “a partial
revocation of time served.” The trial court ordered the Tennessee Department of
Correction (“TDOC”) to supervise the balance of his eight-year sentence, where he was
already being monitored as a sex offender. The trial court ordered jail credit from “8/23/19
to 6/29/20.”
In February of 2021, Defendant was arrested and charged with possession of 45
grams of methamphetamine with intent to sell, possession of 45 grams of marijuana with
intent to sell, unlawful possession of a weapon, possession of a firearm in the commission
of a dangerous felony, and possession of drug paraphernalia. A probation violation report
was filed on March 4, 2021, as a result of his arrest.
On May 3, 2021, Defendant was arrested on two assault charges. On May 4,
Defendant was arrested for aggravated assault, violating an order of protection, and
possession of a prohibited weapon. A second probation violation report was filed on May
5, 2021, as a result of the arrests on May 3 and 4. The trial court held a hearing on the
violations on June 1.
At the hearing, Charles Smith, of the TDOC Board of Probation and Parole, testified
that he was the probation officer for Defendant, appointed in August of 2020, when
Defendant came off of community corrections and went onto probation. He noted that
Defendant was a sex offender subject to community supervision for life.
Mr. Smith filed a report on March 4, 2021, alleging that Defendant was in violation
of “rule number 2: On or about 2/21 [Defendant] was arrested for possession of meth with
intent, possession of marijuana with intent, possession of a firearm in commission of a
dangerous felony, unlawful possession of a weapon, theft of property, and possession of
drug paraphernalia.” Defendant was also alleged to be in violation of rule number 4,
possessing a gun during the arrest.
In a “follow-up report”, the probation officer indicated that Defendant was also
arrested on May 3, 2021, for domestic assault and simple assault, and on May 4 for
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aggravated assault, violation of an order of protection, and possession of a prohibited
weapon. The prohibited weapon was a set of “brass knuckles” with a knife.
On cross-examination, Mr. Smith noted that Defendant had complied with the
conditions of probation and community supervision for life with the exception of the new
arrest.
Officer Brandon Hayes of the Dyersburg Police Department also testified at the
hearing. He recalled that on February 21, 2021, he responded to a call about a potential
domestic situation at the Kroger parking lot. When he arrived, Defendant was leaning into
the driver’s side window of a maroon car. The occupant of the maroon car, Hannah
Boatright, was in a relationship with Defendant. She was seated in the driver’s seat.
Officer Hayes recalled seeing a black Honda sedan close by. Defendant had a key fob in
his pocket that looked like it belonged to a Honda.
One of the officers on the scene smelled marijuana emanating from the maroon car.
Officers asked and Defendant consented to a search of his person. Defendant was in
possession of a loaded Smith & Wesson Model 37, inside his pants near his ankle. He
denied ownership of the firearm. Ms. Boatright claimed ownership of the firearm.
Defendant also produced a methamphetamine smoking pipe and over $2000 cash from his
person. Defendant did not have any drugs on his person.
At that point, Defendant was placed under arrest based on the possession of the
firearm. Officer Hayes inserted the key from Defendant’s key ring in the door of the
Honda. The key fit and turned inside the lock, but Officer Hayes did not open the vehicle
at that time. Officer Hayes called the canine unit to the scene on his belief that there were
narcotics located in the vehicle. The black Honda was searched after a K-9 made a positive
indication on the vehicle on the passenger side. During a search of the vehicle, officers
discovered 39 or 49 grams of methamphetamine, three sets of scales, and other items of
drug paraphernalia in the floorboard on the passenger side. At least two of the sets of scales
contained marijuana and/or methamphetamine residue.
Officer Chris Purcell testified that he was dispatched to Greentree Apartments on
May 3 based on a report from dispatch that Defendant was “threatening to hurt himself and
others.” When Officer Purcell arrived on the scene, “a female [was sitting] in a car in front
of the residence.” She was identified as Brooke Pleasant.
As Officer Purcell approached the residence, he “heard the door open.” When he
“looked up it slammed shut again.” He could “hear hollering and yelling inside.” The door
opened again, and Ms. Boatright exited the residence. She was “running out crying” and
asked Officer Purcell to “please get him out of there.”
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Officer Purcell entered the residence. Defendant “came out with his hands up where
[the officer] could see them.” Officer Purcell asked Defendant to explain the situation.
Defendant said that he was “trying to talk to [Ms. Boatright] about their relationship and
they were having issues.”
Defendant was eventually arrested for domestic assault and simple assault for his
actions on May 3. According to Officer Purcell, there was no physical contact or
confrontation. The charges were brought on the basis of Defendant’s screaming, cursing,
and aggressive actions.
Officer Jake Sadler was called to the residence of David Mansfield on May 4 after
the report of an unwanted individual, Defendant, at the residence. When he arrived,
Defendant was “walking down the driveway” away from the house. Defendant was on the
phone and Ms. Boatright was on the porch of the house. Defendant claimed that he lived
there with Mr. Mansfield and that Ms. Boatright showed up at the house. There “was an
active no contact order on file” after the May 3 domestic arrest. Defendant was detained.
He was asked if he could be searched, and he “owned up to having a knife in his pocket”
that was a “steel metal knife made like knuckles that had a blade inside.” Defendant was
charged with possession of a prohibited weapon, violation of an order of protection, and
aggravated assault of Mr. Mansfield.
Ms. Boatright testified on behalf of Defendant. She explained that they had been in
a relationship for six to nine months at the time of the arrests although she had known
Defendant for about ten years. Ms. Boatright testified that Defendant had a drug problem
the whole time she knew him and that he would benefit from some form of rehabilitation.
When asked about her ownership of the firearm found inside the vehicle, Ms. Boatright
invoked her Fifth Amendment privilege against self-incrimination.
At the conclusion of the hearing, counsel for Defendant asked the trial court for a
partial revocation so that Defendant could potentially get much needed rehabilitation for
drug abuse. The trial court noted that Defendant pled guilty to serious charges in March
of 2018 and violated probation within one year. The trial court recounted that Defendant
was partially revoked in August of 2020 and given “the benefit of the doubt” by revoking
to time served and placed back on probation. Another report was filed March 4 based on
the incidents in the Kroger parking lot. The trial court recapped the facts of the Kroger
arrest and expressed the opinion that it was “perfectly clear” that Defendant was “selling
drugs” based on the amount of cash on his person and the quantity of drugs and presence
of scales, all in violation of the terms and conditions of probation. Additionally, the trial
court noted that even if the gun found on Defendant’s person belonged to Ms. Boatright, it
was on Defendant’s “person” and still a violation of his probation. The trial court
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continued, noting that despite that arrest, Defendant was arrested again in May for violating
the order of protection and other offenses. The trial court determined that the State had
proven by a “preponderance of the evidence” that Defendant violated his probation. Next,
the trial court told Defendant he had been “given the opportunity” and had “for several
years been creating problems with the law” and these new charges were just “additional
problems.” As a result, the trial court completely revoked Defendant’s probation.
Defendant filed a timely notice of appeal.
Analysis
On appeal, Defendant does not challenge the trial court’s determination that he
repeatedly violated his probation with new charges. Instead, Defendant argues that the trial
court improperly ordered him to serve the balance of his sentence in incarceration by failing
to consider any alternative penalties and make findings on the record about the appropriate
consequences, merely ordering Defendant to serve his sentence. He asks this Court to
remand for a “proper evaluation under the guiding principles of law.” The State disagrees,
insisting that the trial court is not required to perform a second analysis after finding
Defendant violated probation and that there is no abuse of discretion because the record
contains evidence that supports the decision that a violation of probation occurred. As a
result, the State insists that the trial court did not abuse its discretion and that Defendant’s
appeal “has no merit.”
It is well-settled that a trial judge is vested with the discretionary authority to revoke
probation if a preponderance of the evidence establishes that a defendant violated the
conditions of his or her probation. See T.C.A. §§ 40-35-310, -311(e); State v. Shaffer, 45
S.W.3d 553, 554 (Tenn. 2001). “The proof of a probation violation need not be established
beyond a reasonable doubt, but it is sufficient if it allows the trial judge to make a
conscientious and intelligent judgment.” State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).
After finding a defendant violated probation, a trial judge has the authority to impose one
of several alternative consequences: (1) order incarceration for some period of time; (2)
cause execution of the sentence as it was originally entered; (3) extend the defendant’s
probationary period by up to two years; or (4) return the defendant to probation on
appropriate modified conditions. See State Beard, 189 S.W.3d 730, 735 and n.2 (Tenn.
2005) (quoting State v. Hunter, 1 S.W.3d 643, 648 (Tenn. 1999));
Recently, there has been some confusion about the proper procedure for a trial court
to follow before revoking a probationary sentence. The Tennessee Supreme Court issued
an opinion attempting to “clarify and bring uniformity to the standards and principles
applied by the trial courts and appellate courts in probation revocation proceedings.” State
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v. Craig Dagnan, 641 S.W.3d 751, 753 (Tenn. 2022). In Dagnan, the court determined
that:
probation revocation is a two-step consideration on the part of the trial court.
See Tenn. Code Ann. §§ 40-35-308, -310, -311. The first is to determine
whether to revoke probation, and the second is to determine the appropriate
consequence upon revocation. This is not to say that the trial court, having
conducted a revocation hearing, is then required to hold an additional or
separate hearing to determine the appropriate consequence. The trial courts
are required by statute to hold a revocation hearing. Id. § 40-35-311(b).
However, there is no such requirement in the statutes or case law for an
additional hearing before deciding on a consequence, and we decline to
impose one. Defendant agrees that requiring a separate hearing solely to
determine the consequence for violating probation is not necessary and
would be too great of a burden on the trial courts. Still, we emphasize that
these are two distinct discretionary decisions, both of which must be
reviewed and addressed on appeal. Simply recognizing that sufficient
evidence existed to find that a violation occurred does not satisfy this burden.
Id. at 757. Thus, a trial court is required to make two separate decisions: (1) whether to
revoke probation; and (2) if probation is revoked, what consequence will apply. Id. The
supreme court went on to explain the standard of review of a decision revoking probation
as follows:
abuse of discretion with a presumption of reasonableness so long as the trial
court places sufficient findings and the reasons for its decisions as to the
revocation and the consequence on the record. It is not necessary for the trial
court’s findings to be particularly lengthy or detailed but only sufficient for
the appellate court to conduct a meaningful review of the revocation
decision. See Bise, 380 S.W.3d at 705-06. “This serves to promote
meaningful appellate review and public confidence in the integrity and
fairness of our judiciary.” [State v.] King, 432 S.W.3d [316,] 322 [(Tenn.
2014)]. When presented with a case in which the trial court failed to place
its reasoning for a revocation decision on the record, the appellate court may
conduct a de novo review if the record is sufficiently developed for the court
to do so, or the appellate court may remand the case to the trial court to make
such findings. See King, 432 S.W.3d at 327-28.
Id. at 759.
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Here, after hearing the proof, the trial court recounted the facts giving rise to the
violation reports. The transcript included three pages of oral findings with regard to the
facts leading up to the hearing and the testimony at the hearing. After reviewing the proof,
the trial court told Defendant he had been given the “benefit of the doubt” on at least one
occasion and that the State proved by a preponderance of the evidence that Defendant had
violated his probation. The trial court then noted Defendant had “been creating problems
with the law” for “several years” and that the most recent violations were “just . . .
additional problems.” While the trial court did not mention a two-step process or use any
language indicating a separate exercise of discretion, in our view the trial court implicitly
did both of these things as required by Dagnan. Id. at 759. The trial court separately
determined that the preponderance of the evidence supported the revocation and then
determined that Defendant’s probation should be revoked in full. The trial court failed to
mention alternatives available to Defendant other than full revocation of probation and
ignored Defendant’s insistence that drug addiction led to his repeated probation violations.
As noted in Dagnan, “[i]t is not necessary for the trial court’s findings to be particularly
lengthy or detailed but only sufficient for the appellate court to conduct a meaningful
review of the revocation decision. Id. (citing Bise, 380 S.W.3d at 705-06).
In our de novo review of the revocation decision, we determine that the record is
sufficiently developed for this Court to affirm the judgment of the trial court. The facts
presented indicated that Defendant violated the rules of his probation by selling drugs and
possessing a gun, supporting a finding by the trial court that Defendant’s probation should
be revoked. Moreover, it is lavishly clear that “[m]easures less restrictive than confinement
. . . [had] recently been applied unsuccessfully to the defendant” such that incarceration
was appropriate, supporting the trial court’s decision to order Defendant to serve his entire
sentence. See § T.C.A. 40-35-103(1)(C). Defendant is not entitled to relief.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
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TIMOTHY L. EASTER, JUDGE
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