Robert Leon Thompson v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION I

ROBERT LEON THOMPSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-19

August 28, 2002

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

[CR-2001-358]

HONORABLE J. MICHAEL

FITZHUGH, CIRCUIT JUDGE

AFFIRMED

Appellant, Robert Leon Thompson, pleaded guilty to first-degree sexual abuse and first-degree false imprisonment on August 1, 2001. The trial court suspended imposition of his sentence for a period of ten years, imposing certain designated terms and conditions and placing him on supervised probation for two years. On September 17, 2001, the State filed its petition to revoke, alleging that appellant had violated several of the terms and conditions by failing to report to his probation officer, committing the offense of residential burglary, committing the offense of rape, having contact with R. P. in violation of court orders, and failing to attend counseling sessions with Larry Gantt. Following a hearing on the petition, the trial court found that appellant had violated the terms and conditions of his probation, revoked his suspended sentence, and sentenced him to ten years' imprisonment. We affirm.

In a revocation proceeding, the burden is on the State to prove the violation of a condition of probation or suspended sentence by a preponderance of the evidence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). The trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. Moreover, because the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Id.

At the revocation hearing, Delores Biocic, a parole/probation officer, testified that appellant was scheduled to come in for a visit on September 11, but that he did not do so. She said that she tried to locate him where he was supposed to be working, but that she could not find him there. Biocic testified that she told appellant's mother she wanted him to come to her office the next morning, but that he did not show up then nor any time later. She said that she tried to find him at his house, but that no one was there. She said that she called his cell phone and there was no answer on September 12, but that she was able to talk to him on September 13 and that she told him to come see her "right then." She said that appellant was on maximum supervision; that September 11 was his regular report date; that he did not come to her office in response to her September 13 conversation with him; that the files showed that Officer Yates, appellant's prior probation officer, had submitted four reports on appellant showing that he had reported to the office on August 1, 7, 14, and 21, but that therehad been no visits after August 21. She explained that maximum supervision requires the probationers to report weekly to the office, in person.

Larry Gantt, a therapist with Mt. Hope Counseling Centers, testified that he specializes in working with sex offenders; that appellant was referred to his office for counseling by court order; that he first met appellant on August 16; that he conducted three sessions with him on August 18, 23, and 30 to determine his counseling needs; that appellant was to return on September 6, but that he did not show up; and that he has not spoken with appellant since August 30.

Detective David Young of the Fort Smith Police Department testified that he came into contact with appellant at the police station on September 18, 2001; that appellant was in custody; that on September 17, 2001, he had spoken with appellant's victim in the underlying offenses, Ms. P., regarding her report that appellant raped her on that date; that she was nervous, somewhat scared, shaken, and looked to have been crying.

Appellant objected, contending that if the officer was allowed to testify about what the woman had told him, it would violate appellant's right to confront the witnesses against him since she was not present at the hearing. The trial court allowed the testimony. Detective Young recounted what the woman told him, which involved appellant coming to her house and engaging in nonconsensual sexual activities with her.

Detective Young also testified that he talked with appellant on September 18 at the police department; that he advised appellant of his rights; that he asked appellant about what happened in the bathroom with the woman; that appellant said he asked the woman toperform oral sex in the bathroom; that he became frustrated when he could not get an erection; that appellant acknowledged that the woman asked him to stop but that he "was close" and had her continue; and that appellant also acknowledged that he probably got loud verbally and that she was probably scared or threatened.

At the conclusion of the hearing, the trial court found that appellant had violated the terms of his release in that he had not made proper contact with his probation officer and that he had failed to see Dr. Gantt as he was required to do. The court further found that appellant had been directed to have no contact, directly or indirectly, with the victim of his underlying offenses, but that by his own admission he had done so.

Appellant contends on appeal that the trial court erred in denying him the right to confront a witness against him, R. P., and that the hearsay testimony of what Ms. P. told Detective Young should not have been allowed. Arkansas Code Annotated section 5-4-310(c) (Repl. 1997) provides:

(c) At a preliminary hearing pursuant to subsection (a) of this section or a revocation hearing pursuant to subsection (b) of this section:

(1) The defendant shall have the right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation; and

(2) The court may permit the introduction of any relevant evidence of the alleged violation, including letters, affidavits, and other documentary evidence, regardless of its admissibility under the rules governing the admission of evidence in criminal trials.

(Emphasis added.) As we explained in Jones v. State, 31 Ark. App. 23, 786 S.W.2d 851 (1990), although the rules of evidence, including the hearsay rule, are not strictly applicablein revocation proceedings, the right to confront witnesses is. "In a probation revocation proceeding the trial court must balance the probationer's right to confront witnesses against grounds asserted by the State for not requiring confrontation." 31 Ark. App. at 26, 786 S.W.2d at 852 (citing Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989)). In balancing these concerns, the trial court should assess the State's explanation for why confrontation is undesirable or impractical, and a second factor that must be considered is the reliability of the evidence that the State offers in place of live testimony. Id.

Here, as in Jones, the State gave no reason for Ms. P.'s absence and there is no contention that the trial court followed the procedure established by Goforth, supra. However, we conclude that the trial court's failure to do so was harmless. Again, as we explained in Jones:

In the case at bar the State gave no reason for Harris's absence and there is no contention that the trial court followed the procedure established by Goforth. We conclude that the trial court erred in admitting the evidence, but also conclude that the error was harmless under the circumstances. In Delaware v. Van Arsdall, 475 U.S. 673 ... (1986), the United States Supreme Court held that a denial of the right to confront the witness may be harmless error. The Court said:

Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

31 Ark. App. at 26, 786 S.W.2d at 853 (emphasis added). In applying these factors here, it is clear 1) that the witness's testimony was not of critical importance to the prosecution'scase because the State need prove only one violation of a condition of probation, Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001), and it proved other violations besides appellant's contact with Ms. P.; 2) that the testimony was cumulative because appellant admitted to police officers in a taped interview that he had sexual contact with Ms. P.; 3) that there was other evidence corroborating the witness's testimony on material points because, similarly, appellant himself corroborated the testimony by admitting that he had sexual contact with Ms. P.; and 4) that the prosecution's case was strong overall for the reasons already set forth in applying the previous factors. Moreover, the bases for revocation cited by the trial court did not rely upon Detective Young's account of Ms. P.'s statement, but rather the testimony of the probation officer, the therapist, and appellant's own admission as recounted by Detective Young. Accordingly, we conclude that the trial court erred in admitting the challenged testimony, but also conclude that the error was harmless under the circumstances.

Affirmed.

Bird and Crabtree, JJ., agree.