Jose F. Wilkerson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

JOSE F. WILKERSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-680

December 5, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

CR-99-784

HON. DAVID N. LASER, JUDGE

AFFIRMED

This is an appeal from a revocation of probation. Appellant's sole point on appeal is that the trial court abused its discretion in allowing Officer Charley Dabbs to testify about a drug transaction, over appellant's objection based on lack of foundation. We affirm.

On November 29, 1999, appellant Jose Wilkerson pled guilty to felony possession of marijuana and was sentenced to three years' probation. Conditions of his probation included payment of fines and probation fees, regular reporting to a probation officer, abstention from alcohol and drugs, and that he not violate any federal, state, or municipal law. The State, on February 27, 2001, filed a petition to revoke appellant's probation based on several probation violations, including that he committed the crimes of terroristic threatening and delivery of a controlled substance. After conducting a hearing on the petition, the trial court revoked appellant's probation and sentenced him to six years' imprisonment.

While appellant's point on appeal is that the trial court abused its discretion by allowing the testimony of Officer Dabbs over his objection based on lack of foundation, he argues that the court erred in allowing this testimony because it constituted inadmissible hearsay. A trial court's ruling on matters pertaining to the admission of evidence is within the discretion of the trial court and will not be set aside absent abuse of discretion. Lewis v. State, 74 Ark. App. 61, 48 S.W.3d 535 (2001).

Appellant's abstract of the revocation hearing consists of only one paragraph of Officer Dabbs's testimony and the objection at issue. From this flagrantly deficient abstract, it is apparent that appellant's objection based on lack of foundation is insufficient to preserve a hearsay argument for appeal. See Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994)(declining to reach appellant's hearsay argument where the objection below was lack of foundation for officer's knowledge). However, even if appellant had preserved his argument for appeal, certain rules of evidence, including the hearsay rule, are not applicable in revocation proceedings as they would be in a trial. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). Further, the deficient abstract would make it impossible to determine whether appellant was prejudiced by the trial court's ruling, and this court will not reverse an evidentiary ruling absent a showing of prejudice. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).

Finally, we note that the substance of the testimony that appellant contends was erroneously admitted only addressed one of the many violations of appellant's probation, and he has not challenged the various other violations the trial court relied on in revoking his probation. The admission of evidence on the drug transaction was not prejudicial because it was cumulative, see Lewis, supra, and because the State only needed to show that appellant had violated one of the conditions of his probation in order to revoke the probation. See Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987).

Affirmed.

Hart and Baker, JJ., agree.