Patricia Ecton v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION III

CACR 00-880

April 4, 2001

PATRICIA ECTON APPEAL FROM MISSISSIPPI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN NELSON FOGLEMAN

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

In January 1999 Patricia Ecton pled guilty to possession of drug paraphernalia and was placed on probation for three years. The following November, the State filed a petition to revoke alleging that appellant had failed to report to her probation officer, had failed to keep him informed of any change in address, and had failed to pay probation fees, court costs, her fine, and restitution. After a hearing, the trial court revoked appellant'sprobation and sentenced her to two years in prison with an additional suspended sentence of five years.

On appeal, appellant contends that the State failed to meet its burden of proof and that she was denied the right of confronta tion. In addition, she argues that the trial court failed to furnish her with a written statement of the evidence relied upon for the revocation of her probation. We affirm.

Under Arkansas Code Annotated section 5-4-309(d) (Repl. 1997), a court may revoke a defendant's probation if it finds by a preponderance of the evidence that she has inexcusably violated a condition of her probation. On appeal, we do not reverse a trial judge's decision to revoke unless it is clearly against the preponderance of the evidence. Gaines v. State, 313 Ark. 561, 855 S.W.2d 956 (1993). Although the rules of evidence are not strictly applicable to revocation proceedings, the right to confront witnesses is. Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990).

At the hearing, the State and appellant's counsel stipulated that appellant had failed to report to her probation officer, that she had failed to notify him of her changes in address, and that she was behind in the payment of probation fees, court costs, her fine, and restitution. Appellant then testified admitting that she had reported only twice to her probation officer, that she hadmoved often without notifying her probation officer, and that she had missed a number of the required payments. Based on the stipulation and appellant's testimony, the trial court revoked appellant's probation, finding that she had inexcusably failed to report to her probation officer. The court excused appellant's failure to make the required payments based on her testimony that she was indigent.

For reversal, appellant contends that the evidence is insufficient to support the trial court's decision because the State, having the burden of proof, failed to offer any witnesses. It is the appellant's argument that the State must call witnesses and that, apparently, neither the stipulation nor appellant's own testimony could satisfy the State's burden. Appellant also argues that she was denied the constitutional right of confrontation because of the State's failure to call witnesses. Neither argument was raised below, so we need not address them further. In Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000), the supreme court held that a defendant in a revocation proceeding must move for a directed verdict in order to preserve a challenge to the suffi ciency of the evidence. Likewise, even constitutional arguments are waived on appeal when they are not presented below. Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997).

Appellant also argues that the trial court erred in failing to furnish her with a written statement of the evidence relied upon and the reasons for revoking her probation, as required by Ark. Code Ann. § 5-4-310(b)(5) (Repl. 1997). This argument is also being raised for the first time on appeal and is therefore also waived. Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989).

Affirmed.

Stroud, C.J., and Neal, J., agree.