Kimberly Ann Brown v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

KIMBERLY ANN BROWN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-214

September 28, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR20012476]

HON. TIMOTHY DAVIS FOX, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

In November 2001, Kimberly Ann Brown pled guilty to possession of drug paraphernalia and possession of marijuana, third offense. The trial court sentenced Brown to four years' probation. In September 2003, the State filed a petition to revoke Brown's probationary sentence. After conducting a hearing, the circuit court revoked the probationary sentence and sentenced appellant to a total of two years in a regional correctional facility. The sole argument on appeal is that the trial court erred in admitting certain hearsay evidence during the course of the revocation hearing. We find no error and affirm.

During the course of the revocation hearing, the State's only witness was Patrick Hallum, an assistant area manager in the Little Rock Probation Office. He testified that as part of his duties he oversaw a computer-log system where all officers are responsible for noting any contact with probationers. Hallum further testified that he also worked as a probation officer, and as part of the probation-officer job he too maintained a computer log outlining all interaction he had with the offenders in his care. He noted that any kind of contact-telephone calls, monthly visits-is entered into the system.

After this testimony, the State sought to elicit testimony from Hallum regarding the electronic log that the probation office kept on Brown, including the alleged violations he noted as her probation officer. Brown objected on hearsay grounds because many of the entries were made by other officers. The State responded that the file was a business record because the record was made at the moment that the probation officer did the action and the records were kept in the regular course of business. The trial court agreed with the State's position and allowed the log to be admitted as a business record. The trial court further noted that Hallum was the custodian of the records because he was in charge of the other officers as it related to the computer system. Brown renewed her objection, arguing that the activity log was hearsay because it was "other people's statements being offered for the truth of the matter asserted[,]" that all the material in the file was not in the personal knowledge of the probation officer testifying, and that any statement in the file that was made by someone other than a probation officer was hearsay.

On appeal Brown argues that her probation revocation and subsequent sentence should be reversed because "the trial court abused its discretion in allowing hearsay to be admitted as a business record." Specifically she argues that the records do not meet the business record requirements of Ark. R. Evid. 803(6) (2004) because "they were prepared with the specific purpose of providing evidence in a criminal proceeding." She also argues that her confrontation rights were violated.

Unfortunately, Brown did not make these arguments below and has abandoned her original arguments on appeal. It is well-settled law that we cannot reach abandoned arguments on appeal. See, e.g., Jordan v. State, 356 Ark. 248, 256, 147 S.W.3d 691, 696 (2004). Nor can appellant change her argument on appeal. See, e.g., Hunter v. State, 330 Ark. 198, 203, 952 S.W.2d 145, 148 (1997). Also, issues raised for the first time on appeal, even constitutional ones like Brown's Confrontation Clause argument, will not be considered because the trial court did not have an opportunity to rule on the argument. London v. State, 354 Ark. 313, 125 S.W.3d 813 (2003). In order for Brown's objection to have been sufficient to preserve her Confrontation Clause argument, she would have had to specifically note that her rights were violated because she was unable to cross-examine the persons not present at the hearing. Jones v. State, 31 Ark. App. 23, 25, 786 S.W.2d 851, 852 (1990). In fact, we have specifically found that an assertion of hearsay is insufficient to raise the issue of confrontation. See, e.g., Fitzpatrick v. State, 7 Ark. App. 246, 248, 647 S.W.2d 480, 481 (1983).

Furthermore, even if the merits of the appeal were preserved for our review, they have no merit. A revocation hearing is not a criminal prosecution and the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings. Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990).

For the reasons stated the decision of the trial court is affirmed.

    Affirmed.

    Hart and Neal, JJ., agree.