Nicholas Clower pled guilty to two counts of sale and delivery of less than 0.5 grams of cocaine. Clower was sentenced to six years’ probation for each count, to be served concurrently. Clower was rearrested and his probation revoked and ordered to spend the rest of his sentence in prison. He appealed, arguing that the trial court erred in determining that he possessed a weapon in violation of his probation. The Court of Criminal Appeals agreed with the trial court and affirmed the revocation of probation.
A probation violation occurred in 2010 and Clower was accused of the manufacture, sale and delivery of cocaine, possession of paraphernalia, unlawful weapon possession, aggravated assault and domestic assault. Quite a long list of misbehavior for a parolee.
Defendant claimed he wasn’t actually in possession of the gun, that it was merely in his possession. At his revocation hearing the Court held that defendant violated the terms of his probation by failing to report and moving without permission. The other issues include a weapon and that was found in close proximity to Clower and had his fingerprints on it. The Court decided that this was sufficient for a preponderance of the evidence to find that possession of a handgun occurred, sufficient for a violation.
The defendant asserted that the trial court erred by saying that he possessed a handgun. The Court of Criminal Appeals said that the State must only prove a violation by a preponderance of the evidence. Assuming there’s been no abuse of discretion the trial court’s decision will not be disturbed.
The Appeals Court found that Clower was in close proximity to the weapon, his fingerprints were on the weapon and he initially admitted to holding the weapon. This was deemed sufficient information on which to base a decision, thus the trial court did not abuse its discretion. Furthermore, the other violations that were found to have occurred and would permit revocation regardless of the weapon possession issue.
To read the full opinion, click here.
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