Robert Carpenter v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
DIVISION I
CACR07498
December 5, 2007
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[CR025721]
ROBERT CARPENTER
APPELLANT
V.
HONORABLE JOHN HOMER
WRIGHT, CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
This is an appeal from the revocation of probation. Appellant, Robert Carpenter,
argues that the trial court erred in taking judicial notice of the court’s file and that there
was insufficient evidence to revoke his probation. We affirm.
On February 24, 2003, Carpenter entered a negotiated plea of guilty to the offenses
of commercial burglary and attempted commercial burglary. He was sentenced to four
years’ probation; ordered to pay restitution of $582.02; and ordered to pay court costs. A
judgment and disposition order memorializing this plea was filed on March 6, 2003. One
of the conditions of Carpenter’s probation was that he pay a supervision fee of $25 per
month to the Department of Community Punishment. On March 1, 2006, a petition was
filed to waive Carpenter’s past and present supervision fees due to his limited income and
the fact that he still owed restitution to the victim, and an order waiving this condition of
probation was filed on March 2, 2006. On December 27, 2006, a petition to show cause
was filed against Carpenter, alleging that he had violated three conditions of his probation
— that he had committed a criminal offense punishable by imprisonment, seconddegree
forgery; that he was delinquent $825 in supervision fees; and that he had an outstanding
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restitution balance of $498.02 and had not made a payment since July 18, 2003.
At the beginning of the revocation hearing, held on February 12, 2007, the trial
judge stated that as a matter of course in revocations, he took judicial notice of the entire
file. Next, the State withdrew the allegation of probation violation with respect to
condition number thirteen, noting that all of the supervision fees had previously been
waived. The trial court allowed the State to withdraw that allegation.
At the hearing, Kristi Constant, Carpenter’s probation officer, testified that
Carpenter’s outstanding restitution balance was $498.02; that Carpenter had not made a
restitution payment since July 18, 2003; that Carpenter had requested to waive his
supervision fees so that he could concentrate on his restitution payments; and that
Carpenter had paid his court costs and his indigentdefensefund payment. She also
alleged that Carpenter had violated the law concerning a forgery.
David Rhoda, Carpenter’s former landlord, testified that in October 2006,
Carpenter had given him a check for rent made out to David Rhoda. He said that
The probation violation report erroneously stated that the restitution violation was
the fifteenth condition of Carpenter’s probation when in fact it was the fourteenth condition.
This error was perpetuated by the trial judge, as he found that Carpenter had violated
conditions 1, 13, and 15 of his probation instead of conditions 1, 13, and 14.
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Carpenter told him that he had performed some work for some people and that they had
written the check for his rent. Rhoda noted “Rob’s rent” on the check and deposited it.
Rhoda said that he did not know who filled out the check, just that it was made out to him
and that Carpenter told him that it was for his rent.
Kim Hutzel, on whose account the check in question was written, testified that her
checkbook was stolen on October 10, 2006, and although she immediately called her
bank, the check was cashed prior to the stoppayment notice on that account. Kim Hutzel
testified that she neither wrote that check nor authorized anyone else to do so. Her
husband, Michael Hutzel, also testified that he did not sign the check or authorize anyone
to sign it on his behalf.
Detective Frank Abbott of the Hot Springs Police Department testified that when
he spoke to Carpenter in October 2006 regarding some burglaries involving a person
named Aaron Armstrong, Carpenter mentioned something about a forgery. Abbott said
that Carpenter voluntarily stated that Armstrong had given him a check, and that
Carpenter had given it to his landlord for rent.
Sergeant Greg Stringer of the Hot Springs Police Department testified that he
investigated the potential forgery on Kim Hutzel’s account and that Carpenter was one of
the suspects. Stringer said that when he arrested Carpenter for forgery, he read Carpenter
his rights, Carpenter signed and initialed the rights form, and Carpenter gave a voluntary
written statement. The statement indicated that Armstrong had given Carpenter the check
because Armstrong knew that Carpenter was behind on his rent; that Armstrong told
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Carpenter that he got the check in return for doing some work; and that Armstrong had
not said anything about the check being stolen. Stringer also took David Rhoda’s
statement, in which Rhoda said that Carpenter had told him that some friends were trying
to help Carpenter out by giving him a check already made out to Rhoda, which Carpenter
then gave to Rhoda.
After the State rested, the defense moved for a directed verdict, arguing that the
conditions of probation were not introduced, that there had been no testimony that
Carpenter had ever signed or been advised of the conditions of probation, and that it was
crucial for the trial court to have introduced as an exhibit the conditions of probation.
The defense also argued that there was insufficient evidence to show that Carpenter
committed forgery because all he did was give the check to his landlord. The last part of
the directedverdict motion was that the State had failed to show that Carpenter had the
means to make restitution and did not do it. All of these arguments were denied by the
trial court.
Carpenter testified in his own defense, stating that during his time on probation, he
did not have the ability to pay restitution. He said that in 2005, he worked at McAllister’s
for about a week and a half, at Chef Paul’s for two or three months, and at Modern
Window and Door. He said that in 2006, he worked at Brick House Grill for three or four
months, at Magic Springs for two months, and at Aces Construction for two months.
With respect to the stolen check, Carpenter said that Armstrong was staying with
him until he could “get on his feet,” and that Armstrong gave him the check already filled
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out for $250 and said to give it to the landlord for the rent. Carpenter said that he had no
idea that the check was stolen, he just thought that Armstrong was trying to help him out
because he did not have steady employment, and he did not think it was weird that
Armstrong did not cash the check and give him the cash. Carpenter testified that he did
not think the check was already made out to David Rhoda when he received it. Upon the
trial court’s questioning, Carpenter said that he had allowed Armstrong to stay with him
for about a week and a half, but that the check was for two and a half weeks’ rent.
After resting its case, the defense renewed its motions for directed verdict, which
were denied. The trial court initially took the matter under advisement and then found by
a preponderance of the evidence that Carpenter had violated the terms of his probation.
Carpenter was sentenced to six years’ imprisonment on each of the underlying offenses,
with the sentences to be served concurrently.
Carpenter first argues on appeal that the trial court erred in taking judicial notice of
the court’s file at the beginning of the hearing. However, Carpenter made no objection to
the trial court taking judicial notice of the case file when the statement was made. Rather,
he did not object until his motion for directed verdict. To challenge a ruling on appeal,
Carpenter was required to object to it at the first opportunity. See George v. State, 356
Ark. 345, 151 S.W.3d 770 (2004). Because Carpenter did not object at the first
opportunity, he did not preserve this issue for appeal.
Carpenter’s second argument on appeal is that there was insufficient evidence to
revoke his probation. A trial court may revoke a defendant’s probation at any time prior
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to the expiration of the period of probation if it finds by a preponderance of the evidence
that the defendant has inexcusably failed to comply with a condition of his probation.
Ark. Code Ann. § 54309(d) (Repl. 2006). In probation revocation proceedings, the
State has the burden of proving that appellant violated the terms of his probation, as
alleged in the revocation petition, by a preponderance of the evidence, and this court will
not reverse the trial court’s decision to revoke probation unless it is clearly against the
preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826
(1998). The State need only show that the appellant committed one violation in order to
sustain a revocation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). In
testing the sufficiency of the evidence, we view the evidence in the light most favorable
to the State. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).
Here, the trial court found that Carpenter had violated three conditions of his
probation. Carpenter correctly argues that the trial court improperly revoked his
probation on the basis that he had not paid supervision fees, as those fees had been
waived as a condition of probation by a previous order of the trial court and the State had
withdrawn that particular allegation at the beginning of the revocation hearing. However,
we disagree with Carpenter’s argument that because the trial court improperly revoked his
probation on this basis that it casts serious doubt on the trial court’s ultimate decision to
revoke his probation. The State is only required to prove one violation, and the trial court
found three different violations.
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The second alleged violation of a condition of probation was the forgery charge.
Possession of a forged instrument by one who offers it, without reasonable explanation of
the manner in which he acquired it, warrants an inference that the possessor committed
the forgery or was an accessory to its commission. Deshazer v. State, 94 Ark. App. 363,
230 S.W.3d 285 (2006). In this case, David Rhoda testified that Carpenter said that he
received the check for work he did, but the testimony of Hot Springs police officers and
of Carpenter himself indicated that Aaron Armstrong gave Carpenter the check because
Armstrong had been staying with Carpenter and wanted to help with the rent. We cannot
say that the trial court’s determination that Carpenter’s explanation regarding the check
was unreasonable was clearly against the preponderance of the evidence. Because we
hold that there was sufficient evidence to revoke Carpenter’s probation on the basis that
he committed forgery, it is unnecessary to address whether Carpenter violated a third
condition of probation by failing to pay restitution.
Affirmed.
HEFFLEY and BAKER, JJ., agree.
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