Tricia Ann Miller v. State of Arkansas

ar00-621

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

TRICIA ANN MILLER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-621

January 24, 2001

APPEAL FROM THE DREW

COUNTY CIRCUIT COURT

[CR-98-221-2]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

AFFIRMED

Tricia Anne Miller was placed on probation for two years in May 1999 after pleading guilty to the offense of being a felon in possession of a firearm. In October 1999 the State filed a petition for revocation, alleging that she had violated certain terms and conditions of her probation. The trial court conducted a hearing on the State's petition, found that Miller had violated seven conditions of her probation, and revoked her probation. She was sentenced to the Department of Community Punishment for two years, subject to certain requirements; in the event that she should not qualify for community punishment, she was sentenced alternatively to six years in the Arkansas Department of Correction.

Miller now appeals the revocation of her probation, contending that the trial court erred in 1) allowing testimony regarding the results of crime laboratory tests although labpersonnel were not made available to her for cross-examination, and 2) finding by a preponderance of the evidence that she had violated the terms of her probation.

We do not consider trial errors until after we have considered arguments regarding the sufficiency of the evidence, both properly and improperly admitted. Lammers v. State, 330 Ark. 324, 955 S.W.2d 489 (1997); Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). We affirm the revocation now before us, discussing the second point first.

Whether the trial court erred in finding by a preponderance of the evidence that appellant violated the terms of her probation.

The trial court ruled that the State had proven that Miller violated the conditions of her probation that she commit no criminal offense; that she not associate with any felon or those on probation, parole, or suspended sentences; that she not possess, buy, consume, sell, or distribute alcoholic beverages or controlled substances, or possess drug paraphernalia; that she report as directed by her probation officer; that she pay $150 court costs to the Drew County Sheriff's Office; that she pay a $250 fine at the rate of $30 a month until paid in full; and that she pay a $200 public defender's fee.

Appellant first argues that the trial court erred by judicially recognizing, after the State had rested, the written terms and conditions of her probation although the State had not introduced them into evidence. Our review of the abstract reveals the following colloquy:

Defense counsel:

Your Honor, I have a couple of motions I'd like to make. I'd move to dismiss the case on insufficient evidence. The probation terms have not been introduced into evidence. The probation officer testified, but she did not testify specifically to each and every term that she was under.

Prosecutor:

Your Honor, we have in the Court's file a copy of the probationary violation report.

The Court:

I agree. Conditions of probation are in the clerk's file and they are part of the record in this case. You want the Court to take judicial notice of them?

Prosecutor:

Yes, Your Honor.

The Court:

Okay, the Court will do so.

Defense counsel:

My only position would be it's too late for him to ask the Court to take judicial notice.

As far as certain elements of what the State has alleged about the illegal chemicals in the search of Defendant's house that the probation officer testified to, there's been no identification of those chemicals or not [sic] reliable identification of them.

There was no reliable evidence to show that Ms. Miller's passenger was on parole at the time.

I'd move to dismiss the case based on a failure to show sufficient grounds to justify revocation here.

The Court:

The motion will be denied.

The defense then presented its case, rested, and renewed its motions, which the court again denied.

Arkansas Rule of Evidence 201(b)(2) allows judicial notice of an adjudicative fact "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by [resort] to sources whose accuracy cannot reasonably be questioned." Appellant argues that the trial court erred by judicially recognizing the written terms and conditions of her probation when the State had failed to introduce this evidence.1 The bases of her argument are 1) that the terms and conditions were not adjudicative facts, and therefore were not subject to judicial notice under Ark. R. Evid. 201, and 2) that the State was barred from asking the court to judicially recognize the terms and conditions after the State rested and had failed to introduce those terms and conditions.

We need not decide whether the terms and conditions of probation were adjudicative facts, as appellant did not raise the question below. A party is bound on appeal by the scope and nature of those arguments presented to the trial court for its consideration. Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990). The second basis of appellant's argument is refuted by the plain language of Ark. R. Evid. 201 that "[j]udicial notice may be taken at anystage of the proceeding." Therefore, the trial court did not err in taking judicial notice of the terms and conditions after the State rested its case.

Appellant argues alternatively that there was insufficient evidence to revoke her probation. She contends that the only evidence regarding controlled substances was the erroneously-admitted crime laboratory report. Regarding associating with a felon, appellant contends that the State did not meet its burden of proving that she knew or should have known that a man with whom she associated was on parole. She also contends that there was no obligation on her part to pay court costs, the fine, or the public defender's fee by the time of the hearing; that the State was required to prove that she willfully refused to comply with her obligation to make payments; and that the trial court did not consider the factors of Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997), which may be considered in assessing whether a failure to pay was willful or due to inability.

The State need prove only that a defendant committed one violation of the conditions in a revocation case. See Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998); Ark. Code Ann. § 5-4-309(d) (Repl. 1997). We will uphold a revocation unless the trial court's findings are clearly against a preponderance of the evidence. Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999).

Here, appellant's probation officer, Debbie Hancock, testified at the revocation hearing on January 3, 2000. Hancock stated that appellant was ordered in May 1999 to meet monthly with Hancock, but that contact occurred only in August and September 1999. Hancock testified that in July 1999 appellant signed a drug-use waiver form admitting that she hadsmoked several marijuana cigarettes, and that she tested positive for drugs in August 1999. In light of this testimony, we cannot find that the trial court clearly erred in finding that appellant had violated the condition regarding use of controlled substances, as well as the condition that she report as directed by her parole officer. Because only one violation of conditions is sufficient to uphold a revocation, we need not review the evidence regarding the trial court's finding that appellant violated other conditions or appellant's contentions regarding those findings.

Whether the trial court erred in allowing to be admitted into evidence testimony regarding the results of the crime lab tests where crime lab personnel were not made available to appellant for cross-examination.

Appellant argues that the trial court erred by admitting into evidence a state crime laboratory report despite notice she had filed, pursuant to Ark. Code Ann. §12-12-313 (Repl. 1999), requesting the presence of crime lab employees who conducted the tests. Under this section a defendant has the right of cross-examination regarding any investigations by the state crime laboratory if she gives ten-days' notice prior to the proceedings that she requests the presence of the analyst. Appellant also asserts that the State did not establish a sufficient chain of custody for the drugs that were introduced into evidence.

We need not address appellant's argument regarding the admission of the crime laboratory reports, as appellant tested positive for marijuana on one occasion and, on another occasion, told her probation officer that she had smoked marijuana. This evidence, without the crime laboratory reports, was sufficient to uphold the finding that appellant had violated the condition of her probation that she not use controlled substances.

Affirmed.

Robbins and Roaf, JJ., agree.

1 Where the prosecutor failed to present evidence to warrant the circuit court's retaining a juvenile defendant rather than transferring to juvenile court, the criminal information that was part of the court's record was subject to judicial notice by the trial court under Ark. R. Evid. 201(b). Walker v. State, 304 Ark. 393, 803 S.W.2d 502 (1991).