State v. McCaig, W2021-00736-CCA-R3-CD

CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee
Writing for the CourtTIMOTHY L. EASTER, JUDGE
PartiesSTATE OF TENNESSEE v. DANIEL LEON MCCAIG
Docket NumberW2021-00736-CCA-R3-CD
Decision Date10 June 2022

STATE OF TENNESSEE
v.

DANIEL LEON MCCAIG

No. W2021-00736-CCA-R3-CD

Court of Criminal Appeals of Tennessee, Jackson

June 10, 2022


Assigned on Briefs May 3, 2022

Appeal from the Circuit Court for Dyer County No. 17-CR-419 R. Lee Moore, Jr., Judge

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

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.

Timothy L. Easter, J., delivered the opinion of the court, in which James Curwood Witt, Jr. and Camille R. McMullen, JJ., joined.

OPINION

TIMOTHY L. EASTER, JUDGE

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.

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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...

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