TERRY BRANSCUM v. COMMONWEALTH OF KENTUCKY
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RENDERED:
NOVEMBER 30, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-002434-MR
TERRY BRANSCUM
v.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE PAUL BARRY JONES, SPECIAL JUDGE
ACTION NO. 99-CR-00018
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, JOHNSON, and SCHRODER, Judges.
COMBS, JUDGE:
Terry Branscum appeals from an order of the Wayne
Circuit Court revoking his probation and sentencing him to serve
eight years in prison on a conviction for burglary in the second
degree.
Finding no abuse of discretion by the trial court, we
affirm.
On March 16, 1999, Branscum was indicted on the offense
of robbery in the first degree.
On September 7, 1999, he pled
guilty to an amended charge of burglary in the second degree
Kentucky Revised Statutes (KRS) 511.030.
Pursuant to the plea
agreement, Branscum was sentenced to a term of eight years, 180
days of which he was required to serve; the remaining portion of
the sentence was probated.
In addition to the usual terms of
probation, the trial court imposed the specific conditions that
Branscum attend substance abuse counseling and that he submit to
random drug and alcohol testing.
After Branscum had served six months of incarceration,
he was placed under the active supervision of Doug Perkins,
Officer of the Division of Probation and Parole.
On August 31,
2000, the Commonwealth moved to revoke Branscum’s probation for
the following reasons:
1. Branscum’s failure to cooperate with
Perkins as evidenced by his dilution of a
urine sample collected for testing for the
presence of drugs;
2. his failure to attend all counseling
sessions; and,
3. his use of a drug for which he did not
have a prescription as evidenced by a drug
test.
Following a hearing on the motion, the trial court
found that Branscum had violated three conditions of his
probation.
It revoked his probation and ordered him to serve the
remaining portion of his eight-year sentence.
This appeal
followed.
Branscum’s sole argument on appeal is that the evidence
presented by the Commonwealth was not sufficient to support the
trial court’s findings that he had violated the terms of his
probation.
In order to revoke probation, the Commonwealth must
prove a violation of one of the conditions of probation by a
preponderance of the evidence.
701 S.W.2d 716, 719 (1986).
Rasdon v. Commonwealth, Ky.App.,
Our review of the record reveals
-2-
that the Commonwealth presented sufficient evidence to satisfy
that standard with respect to all three of the alleged
violations.
The Commonwealth presented evidence that a urine sample
obtained from Branscum on July 12, 2000, was not capable of being
screened for drugs as it had been diluted.
Perkins testified
that he witnessed Branscum provide the urine sample and did not
see him alter it in any way.
However, he also testified to
events from which the trial court could infer that Branscum,
suspecting he would be asked to submit to a urine test, had
consumed large quantities of water to cause his urine to be
diluted.
Branscum did admit to drinking a lot of water prior to
the test — purportedly to help him lose weight.
The trial court
was not required to accept Branscum’s explanation for the
sample’s dilution and elected to believe the contrary.
Furthermore, Branscum’s own testimony corroborated
Perkins’s claim that he failed to attend several counseling
sessions in July 2000.
Branscum attributed this failure to a
conflict with his schedule at work.
According to Perkins, this
was not the first time he had cautioned Branscum about the
consequences for failing to attend counseling.
Finally, a lab report introduced into evidence revealed
that a urine specimen obtained from Branscum on July 19, 2000,
tested positive for Oxazepam, a Schedule IV depressant, typically
prescribed for the treatment of anxiety.
he had no prescription for the drug.
Branscum admitted that
Nor did he have an
explanation for the presence of this drug in his system.
-3-
The trial court has broad discretion to revoke the
conditional grant of probation.
Tiryung v. Commonwealth,
Ky.App., 717 S.W.2d 503, 504 (1986).
It may revoke probation for
one or several violations where “the evidence supports at least
one violation.”
873 (1988).
Messer v. Commonwealth, Ky.App., 754 S.W.2d 872,
Thus, even if the trial court had accepted
Branscum’s explanation for the diluted urine sample and his
excuse for the missed counseling sessions, his inappropriate use
of Oxazepam was sufficient by itself to justify the revocation of
his probation.
The evidence presented at the hearing, including
Branscum’s own admissions, was more than sufficient to support
the trial court’s order of revocation.
We find no abuse of
discretion.
The judgment of the Wayne Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kimberly Brooks
Covington, KY
Albert B. Chandler III
Attorney General of Kentucky
Brian T. Judy
Assistant Attorney General
Frankfort, KY
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