Majado Manley v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

MAJADO MANLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-292

October 31, 2001

APPEAL FROM THE OUACHITA

COUNTY CIRCUIT COURT

[CR-99-162A]

HONORABLE CAROL CRAFTON

ANTHONY, CIRCUIT JUDGE

AFFIRMED

Appellant, Majado Manley, appeals from the revocation of his probation. He was originally tried by the court on November 12, 1999, and found guilty of the offense of residential burglary. He was placed on five years' probation and was ordered to pay $850 in court costs and restitution. Under two of the conditions of his probation he was not to possess, use, sell, distribute, or have under his control any controlled substance unless prescribed by a physician; and he was to cooperate with his probation officer at all times. On September 12, 2000, the State filed a petition to revoke his probation because he had tested positive for cocaine and had failed to cooperate with probation officials. The petition was amended on September 29, 2000, to add the violation that he had failed to pay the fees that he owed. It was again amended on November 22, 2000, to add additional dates of probation violations. Following a hearing on November 27, 2000, the trial court found that appellant

had violated his probation by his continued use of cocaine. The trial court revoked appellant's probation and sentenced him to six years in the Arkansas Department of Correction. We affirm the revocation.

At the revocation hearing, Rudolph Stennis, probation-officer supervisor, testified that he was familiar with appellant because he tested appellant's urine samples for drugs since appellant's probation officer was a female. He stated that the probation office uses the Syva Company to do drug testing; that the company provides the materials used, such as drug-lab slide kits and test kits; that he and other members of the probation staff administer the tests; that they are certified to perform the drug tests; and that they have proved reliable in the past.

Stennis stated that he performed a drug test on December 17, 1999, and that it was positive for cocaine use. He said that appellant saw the test results and continued to deny the drug use, stating that he "had not done any drugs since December 11, 1999." Stennis said that he told appellant he would send off for a confirmation test and that if it came back positive he would file a violation report for failing to tell the truth about his cocaine use. The confirmation test results were positive.

Stennis stated that he performed a drug test on May 18, 2000, for marijuana and cocaine use; that the results were positive for cocaine use and negative for THC; and that appellant again denied using any cocaine. Stennis testified that another test was performed on June 15, 2000, and that it was positive for cocaine. He stated that appellant again denied using cocaine, but that he enrolled in and completed a drug rehabilitation program.

Stennis recounted that appellant was given the benefit of the doubt with respect to a test that was administered on July 31, 2000, because it only "showed a faint line," and,consequently, that test date was not listed as a violation in the petition to revoke. He said that he administered another test on August 29, 2000, and it was positive for cocaine and negative for marijuana use; that appellant denied drug use; that confirmation on the test was ordered; and that the confirmation results were positive for cocaine. On November 8, 2000, Stennis administered another test, and it was again positive for cocaine and negative for marijuana.

Stennis testified that the reason the State contended that appellant did not cooperate with the probation office was because any reports, verbal or written, must be truthful, and that appellant was not truthful about his drug use.

Janice Pettit, bookkeeper for the Ouachita County Sheriff's Office, testified that appellant was supposed to pay $50 per month beginning on January 5, 2000, but that he had only made three payments totaling $135.

Appellant moved for a directed verdict at the close of the State's case, contending 1) that the State had presented nothing "which says that these office tests have the reliability that should be necessary for these types of hearings," 2) that the State had presented no testimony that appellant was able to pay or that his failure to pay was willful, and 3) that a probationer's denial of the commission of a crime cannot constitute a violation of probation. The trial court denied the motion with respect to the first two bases, but granted the motion with respect to the third basis.

Appellant then testified that he went to rehab as requested and still attends meetings three or four times per week; that he has been doing drugs for fourteen years; and this is the first time that he has really been working to get away from drugs. He submitted an August1, 2000, drug test report as an exhibit, which showed negative test results on a number of drugs including cocaine. He stated that he disagreed with the July 31 positive tests that Mr. Stennis had testified about, and that consequently he went to Ouachita Medical Center and had his own test done. He stated that the test showed a negative on all tested substances, including cocaine. Appellant admitted in his testimony that he used drugs while he was on probation. He stated, "I was using cocaine. I never denied that I had a problem." Appellant further testified that he has been unable to make his payments because he is on disability, receiving only $900 per month.

For his first point of appeal, appellant contends that the trial court erred when it refused to grant his motion for a directed verdict based on the sufficiency of the evidence because the drug tests administered by the probation office were not shown to be reliable and should have therefore been excluded. We disagree.

In a revocation proceeding, the trial court may revoke a defendant's suspension or probation at any time prior to the expiration of the period of suspension or probation if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation. Ark. Code Ann. § 5-4-309 (d) (Supp. 1999). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. See Lemons, supra. Since the determination of a preponderance of the evidence turns onquestions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Lemons, supra; Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). Moreover, the State need only prove that the appellant committed one violation of the conditions. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998).

Here, there was clearly sufficient evidence to show that the drug tests were reliable, particularly in light of the fact that two of the tests were forwarded for confirmation by a drug lab and were confirmed positive. Moreover, the July 31 test results were not used as a basis for revoking appellant's probation. Finally, even if there were a problem with the tests, appellant admitted to Mr. Stennis that he was using drugs while on probation; he just denied that he used them during the periods immediately prior to being tested. Evidence of one violation is sufficient to revoke probation.

For his second point of appeal, appellant contends that the trial court erred when it refused to grant his motion for a directed verdict based on the sufficiency of the evidence because the State failed to show that he willfully failed to comply with the order of probation by not making the arranged payments. We need not address this issue because the trial court did not use this violation as a basis for revoking appellant's probation. Following the revocation hearing the trial court stated, "I'm going to enter a finding that the defendant has violated his probation by the continued use of cocaine." As discussed previously, the State satisfied its burden of proving that appellant had violated the condition of his probation that he not use illicit drugs, and one such violation was sufficient to revoke his probation.

Affirmed.

Hart and Jennings, JJ., agree.