Brian Dwight Higgins v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, Judge

DIVISION I

BRIAN DWIGHT HIGGINS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR 01-00078

SEPTEMBER 26, 2001

APPEAL FROM ST. FRANCIS COUNTY CIRCUIT COURT

[NO. CR 92-273 AND 94-104]

HONORABLE HARVEY L. YATES, CIRCUIT JUDGE

AFFIRMED

Brian Dwight Higgins appeals the revocation of his previously suspended sentences. On appeal, Higgins argues that evidence was insufficient to support the revocation and that he was denied his right to confront adverse witnesses. We affirm.

In 1992, Higgins pled guilty to aggravated robbery and received a ten-year suspended sentence. In 1994, he pled guilty to burglary and received a five-year suspended sentence. In 2000, the State sought to revoke Higgins's suspended sentences on the basis that he had been arrested for drug-related offenses on August 10, 1999, and on May 17, 2000.

During Higgins's revocation hearing, the trial court heard testimony from Brian Davis and John Riggins, Forrest City Police Officers; Vornola Rogers, Higgins's mother; LaWanna Bond,Higgins's fiancée; Robert Higgins, Higgins's brother; and Higgins. Officer Davis provided the testimony regarding the events that led up to Higgins's arrest. Davis testified that he obtained a search warrant for a residence, owned by Vornola Rogers, after a confidential informant purchased drugs at 10:00 a.m. on August 10, 1999. Upon execution of the warrant at 2:23 p.m., Officer Davis found drug paraphernalia and two small bags, containing what later tested to be cocaine, in a front bedroom. Officer Davis testified that Higgins, the only person in the home, told Davis that the bedroom and the items found therein were his.

After hearing all testimony, the trial court revoked Higgins's suspended sentences and sentenced him to consecutive terms of imprisonment of 120 months on each revocation. Higgins appeals.

In a revocation proceeding, the State must prove its case by a preponderance of the evidence. Ark. Code Ann. § 5-4-309 (Supp. 1999). On appeal, we do not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient for a ··²SearchTerm²····²SearchTerm²··criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id.

Higgins first argues that he was denied his right to confront adverse witnesses. While the rules of evidence do not apply at revocation hearings, the defendant does retain his constitutional right to confront adverse witnesses unless the court finds good cuase for not allowing the confrontation. See Gagnon v. Scarpelli, 411 U.S. 778 (1973); Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989); Ark. Code Ann. § 5-4-310(c)(1) (1987). The first witness Higgins argues he had a right to confront was the confidential informant Officer Davis sent to buy drugs from the residence.

At the hearing, during Officer Davis's testimony about the events that led up to Higgins'sarrest, Higgins objected "to what the informant said," unless Higgins was able to confront the informant. The trial court stated that Officer Davis could "tell what he [Davis] did, tell what happened," but that he could not "testify as to what somebody may have said." Higgins did not object again, and he did not object to Davis's testimony based on hearsay. The United States Supreme Court has held that "admission of non-hearsay 'raises no Confrontation Clause concerns" because "cross-examination regarding such statements would contribute nothing to Confrontation Clause interests." United States v. Inadi, 475 U.S. 387, 398 n. 11 (1986) (citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). Given that the Confrontation Clause is not violated by the introduction of non-hearsay testimony, and Davis did not testify as to anything the informant said or did outside of the officer's personal observations, Higgins was not deprived his right to confront the informant.

Higgins further argues that he was denied his right to confront the chemist from the State Crime Lab when the State offered into evidence the Crime-Lab report that identified the white powder substance found in the two bags as cocaine based. Arkansas Code Annotated section 12-12-313 (Repl.1999), provides in relevant part:

(d)(1) All records and reports of an evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the analyst who performed the analysis.

(2) The defendant shall give at least ten (10) days' notice prior to the proceedings that he requests the presence of the analyst of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.

Here, the record is devoid of any indication that Higgins gave the State notice that he wished to cross-examine the chemist who analyzed the substance found in the bedroom. Failure to comply with the notice provision of section 12-12-313 (d)(2) constitutes a waiver of the confrontation right. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). Because Higgins waived his right to confront the chemist, the trial court did not err in overruling his objection to the admission of thelaboratory report.

Lastly, Higgins argues that there was insufficient evidence to support the trial court's revocation of his suspended sentences. The State asserts that Higgins failed to preserve this claim by not moving to dismiss the revocation petition at the close of the revocation hearing as required by Ark. R. Crim. P. 33.1(b) (2000). However, Higgins's counsel did make closing statements wherein he argued that because Higgins's brother asserted ownership of the marijuana, and testimony showed that Higgins lived at another residence, there was nothing to link Higgins to "any of this" other than his being at his mother's home to collect the mail. We find this argument sufficient to preserve this issue on appeal. However, a further problem is Higgins's failure to abstract his closing argument. It is the duty of the appellant to abstract such parts of the record as are material to the points to be argued in the appellant's brief. Manning v. State, 318 Ark. 1, 883 S.W.2d 455 (1994). However, in light of the upcoming abstracting rule changes, we address the merits of his argument.

Higgins argues that the evidence was insufficient to support his revocation because the court relied on evidence that was inadmissible, and the evidence properly admitted did not connect him with the drugs or paraphernalia found in the home. As previously discussed, Officer Davis's testimony and the Crime Lab Report were properly admitted into evidence. Hence, Higgins argument that the trial court improperly considered that evidence is without merit. Further, a preponderance of the evidence exists to support Higgins's revocation.

Officer Davis testified he obtained a search warrant for a residence after a confidential informant purchased a small bag containing white powder. He stated that, upon execution of the warrant, the officers found Higgins alone in the home with drug paraphernalia and two small bags containing a white-powder substance. Davis testified that Higgins had two five-dollar bills in hiswallet that Davis had given the informant that morning, that Higgins said that the items found in the front bedroom belonged to him, and that Higgins said the bedroom was his. Higgins argues that the testimony of his mother and girlfriend establish that he did not live at the residence at issue, and his brother testified that he lived in the front bedroom and the marijuana was his. However, the trial judge was not required to believe the testimony of Higgins or his witnesses and could resolve the conflicting testimony of Officer Davis and Higgins's witnesses in favor of the State. Lemons v. State, supra. As this court has said many times, it defers to the superior position of the trial judge in determining witness credibility. Id.

Affirmed.

Hart, J., agrees.

Pittman, J., concurs.