Patricia Bagby v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CACR00-737

MARCH 14, 2001

PATRICIA BAGBY APPEAL FROM THE YELL

COUNTY CIRCUIT COURT

APPELLANT [CR98-123]

v.

HONORABLE PAUL E. STATE OF ARKANSAS DANIELSON, CIRCUIT JUDGE

APPELLEE

AFFIRMED

On June 22, 1999, appellant Patricia Bagby pleaded guilty to the crime of obtaining prescription drugs by fraud and was sentenced to four years' probation. She was also ordered to pay a $500 fine and to complete sixteen hours of community service. Additionally, appellant was ordered to pay $100 in public defender fees, $150 in court costs, and $20 per month in probation fees. The trial court subsequently revoked appellant's probation, and sentenced her to four years' imprisonment with three years suspended. The three-year suspended sentence was conditioned upon payment of all fines, fees, and restitution ordered by the trial court.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, the appellant's counsel has filed amotion to withdraw on the grounds that the appeal is without merit. Appellant was furnished a copy of her counsel's brief and was given the opportunity to raise any points that she chooses pursuant to Rule 4-3 (j)(2) of the Rules of the Arkansas Supreme Court and Court of Appeals. Appellant has filed, pro se, her point for reversal, and the State has filed a brief responding to appellant's point on appeal.

Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with an explanation of objections made by appellant and ruled on by the trial court, a record of motions and requests made by appellant and denied by the court, and a statement of reasons why counsel considers there to be nothing in the record that will support the appeal. Appellant argues in her pro se point for reversal that she was unaware that she was going to court on the day of the revocation hearing and that she had not made contact with her appointed attorney.

At the revocation hearing, Betsy Boston, an employee of the Department of Community Punishment in Yell County, testified on behalf of the State. Boston testified that since appellant was placed on probation in June of 1999, she had failed to complete community service hours and to pay probation fees and fine payments. Boston testified that although appellant was aware of the conditions of the probation, appellant failed to report to the probation office for five consecutive months in 1999. Boston further testified that appellant owed a balance of $730 at the last court date, and that appellant had not made any payments since that time.

Appellant testified on her own behalf. She admitted that although one of theconditions of her probation required her to pay a fine of $500 in monthly installments of $50, she did not comply with that requirement. Appellant also admitted that she did not report to the probation office as required and that she did not meet her community service requirements. Appellant testified, however, that Betsy Boston combined her community service requirements with her fine and probation fees, and that Boston did not give her a certain time to pay the outstanding balance that was still owed. The State offered rebuttal testimony from Betsy Boston, who testified that there were no modifications made to appellant's probationary requirements. At the conclusion of the hearing, the trial court revoked appellant's probation.

Sufficiency of the Evidence

In revocation cases, the trial court must find by a preponderance of the evidence that the defendant has failed to comply with the conditions of his or her probation before it may be revoked. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). The trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998).

While revocation hearings and trials to determine guilt are not equivalent to criminal proceedings in all respects, they are, nonetheless, criminal proceedings to which Ark. R. Crim. P. 33.1 applies. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). Rule 33.1 requires a defendant to make a directed-verdict motion in both jury and nonjury trials at specified times. Id. At a bench trial, to preserve a challenge to the sufficiency of the evidence on appeal, an appellant must move for dismissal at the close of all of the evidenceand state the specific grounds therefor. Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). This same rationale applies to revocation proceedings. Thompson, supra.

In the present case, appellant moved for a directed verdict at the close of the State's case. However, the record reveals that appellant did not move for a directed-verdict at the close of all of the evidence. Because Rule 33.1 applies to revocation hearings, appellant's failure to make a directed-verdict motion at the close of all the evidence waives any sufficiency argument on appeal.

Motion for Continuance

The next adverse ruling occurred at the start of the revocation hearing. Appellant's counsel moved for a continuance on the ground that he had not had an opportunity to speak with appellant about a defense. Appellant's counsel further asserted that appellant asked him to request a continuance "so she could get out and get caught up with everything."

However, our review of the record does not reveal that appellant obtained a ruling on her motion for continuance. To preserve a point for appellate review, a party must obtain a ruling from the trial court. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). The burden of obtaining a ruling on a point is on the movant. Id. A ruling should not be presumed. Id. Even if we were to consider this issue on the merits, we would not be persuaded that the trial court abused its discretion in denying the motion.

The appellate court will not reverse a trial court's denial of a continuance motion in the absence of abuse of discretion. Godbold v. State, 336 Ark. 251, 983 S.W.2d 939 (1999). The following factors are to be considered by the trial court in deciding a continuancemotion: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of a witness in the event of a postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. Dirickson v. State, 329 Ark. 572, 953 S.W.2d 55 (1997). When a motion for continuance is based on a lack of time to prepare, the appellate court will consider the totality of the circumstances. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). The burden of showing prejudice is on the appellant. Id.

Here, appellant acknowledged that the trial court had already granted one motion for continuance made by the defense. Further, appellant's counsel's only explanation offered for not speaking with appellant was that he did not know whether appellant was in jail. Appellant's counsel did not inform the trial court that he had attempted to contact appellant prior to the hearing, and he failed to explain to the trial court what could have been done if the motion for continuance was granted. A lack of diligence alone is sufficient cause to deny a continuance. Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). Accordingly, we find no merit to this point on appeal.

Hearsay Objection

The next adverse ruling occurred during the direct-examination of Betsy Boston. Appellant objected to Boston's testimony that she had not completed her community service requirement. Appellant argued that there was no documentation presented to verify Boston's opinion regarding her community service hours, and that any testimony from Boston concerning this issue should be considered hearsay. The trial court overruled the objectionbased on its finding that Boston was in charge of appellant's file.

Evidentiary matters regarding the admissibility of evidence are left to the sound discretion of the trial court, and rulings in this regard will not be reversed absent an abuse of discretion. Leaks v. State, 66 Ark. App. 254, 990 S.W.2d 564 (1999). The appellate court will not reverse a trial court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

Appellant has not demonstrated that the trial court abused its discretion in overruling her hearsay objection. Betsy Boston testified that she was responsible for appellant's probation file and that information concerning appellant's community service hours were included in that file. Even if Boston's testimony could be considered hearsay, evidentiary error is harmless if the same or similar evidence is otherwise introduced at trial. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Furthermore, certain rules of evidence, including the hearsay rule, do not apply strictly to a revocation hearing as they would in a trial. Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000). Here, appellant admitted on cross-examination that she had not completed her community service requirements.

The record has been reviewed in accordance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to the appellant and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Stroud, C.J., and Jennings, J., agree.