Robert D. Wilson, III v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, JUDGE

DIVISION I

CACR02-53

AUGUST 28, 2002

ROBERT D. WILSON, III AN APPEAL FROM THE OUACHITA APPELLANT COUNTY CIRCUIT COURT

v. [CR-2000-88-B]

STATE OF ARKANSAS HONORABLE CAROL CRAFTON

APPELLEE ANTHONY, JUDGE

AFFIRMED

In May of 2000, appellant Robert Wilson was convicted of possession of marijuana with intent to deliver and was placed on thirty-six (36) months probation. The conditions of appellant's probation required him to, inter alia, (1) obey all federal, state, local ordinances and court orders; (2) report in person and submit a written monthly report form to his probation officer; (3) not possess, use, sell, distribute, or have under his control, any controlled substances except those prescribed by a licensed physician; and (4) submit to a random drug test when requested to do so by his probation officer. Appellant was subsequently arrested and charged with possession of crack cocaine with intent to deliver in April of 2001.

On the date of appellant's arrest, Officer Goode and Officer Voss were on housing patrol. They passed by the Camden Pool Hall, where Officer Voss indicated to Officer Goode that he saw someone standing in front of the pool hall that he believed had outstanding misdemeanor warrants. Officer Goode acknowledged that he did not know the appellant. The officers drove around the block and requested warrants on Robert Wilson from dispatch. Dispatch informed the officers that there were misdemeanor warrants on the subject. Thereafter, the officers returned to the front of the pool hall to find the appellant. Goode testified that he noticed someone who "caught [his] attention" because the person started walking away from in front of the pool hall. Goode also observed the appellant drop something on the ground. Once the officers pulled into the parking lot, they arrested the appellant.

During the probation revocation hearing, Officer Goode testified that as Officer Voss took the appellant into custody, he went back to the location where he saw the appellant drop something. The officer testified that he found "two small plastic baggies with a contents [sic] that appeared to be rock cocaine." He stated that "[w]ithin the two packages they were individually packaged in smaller baggies." Appellant denied ownership. Detective Reyes also testified during the hearing. He testified that on the morning of April 4, 2001, he was notified of the case and began first appearance papers for Wilson, received the crack cocaine from the Camden Police Department, tagged it as evidence, and sent it to the State Crime Lab for analysis. The report from the lab indicated that the substance was "37.7% cocaine base indicating an amount of 3.332 grams." He further testified that "when I received the drugs, they were in two baggies with several of the rocks being individually packaged."

Following the hearing, the trial court found that appellant had violated the terms and conditions of his probation noted above and sentenced appellant to twenty-four (24) months in theArkansas Regional Punishment Facility. Appellant appeals from this ruling. The sole issue in this revocation case is whether the evidence is sufficient to support the trial court's decision that appellant violated the terms and conditions of his probation. We conclude that it is and affirm.

Appellant first argues that the evidence is insufficient to support the trial court's decision that he violated the terms and conditions of his probation because the State relies on the records of his probation officer to show that he did not report as directed even though his probation officer admitted that the probation office's records are sometimes incorrect. We disagree.

In a revocation proceeding, the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001) (citing Ark. Code Ann.§ 5-4-309 (Supp. 1999)). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992)). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. ··²hit4²····²hit4²····²hit5²····²hit5²····²hit6²····²hit6²··Id. (citation omitted). In order for appellant's suspended sentence to be revoked, the State need only prove that the appellant committed one violation of the conditions of suspension. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Circumstantial evidence may be sufficient to warrant revocation. Lamb v. State, supra (citing Needham v. State, 270 Ark. 131, 603 S.W.2d 412 (Ark. App. 1980)).

Appellant's probation officer, Gwen Cummings, testified that she filed a violation report that charged him with violating the terms of his probation by failing to report and by committing a new offense while on probation. She testified that appellant reported "fairly regularly," and that the last time he reported was on May 8, 2001. The violation report indicated that appellant had reportedon June 7, 2001, but Ms. Cummings indicated that the report was incorrect and that she had attempted to call him on that date.

Appellant testified on his own behalf at the hearing. He stated that the last time he reported was on June 7, 2001 and that he had not reported since then because he had "dirty urine." He acknowledged that he was scheduled to report on June 8, 2001, and that Ms. Cummings requested that he return on that date for a urine test. "I knew my urine was dirty so I did not go." On cross-examination, appellant testified that "I would have tested dirty for marijuana and crack cocaine on June 8th." Appellant further testified that when he was arrested on April 3, 2001, he did not possess any drugs.

Clearly, the trial court's decision to revoke appellant's probation was supported by a preponderance of the evidence. Ms. Cummings testified that appellant violated the terms of his probation by failing to report. Since 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. Lamb v. State, supra (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986)). The appellant gave a judicial confession that he had in fact failed to report because he had "dirty urine," and that on the day he was arrested, he was still using crack cocaine and marijuana. See Barlow v. State, 28 Ark. App. 21, 770 S.W.2d 186 (1989) (because the appellant took the stand and gave a judicial confession to his actions which clearly constituted commission of the offense with which he was charged, the jury had conclusive proof of his guilt). Because the State need only prove that the appellant committed one violation of the conditions of suspension and because the evidence sufficiently supports such a finding, weaffirm.

Appellant also argues that the evidence was insufficient to find that he violated his probation because "[t]here was no testimony that Officer Reyes received those bags from Officer Goode or that he reviewed any evidentiary tags saying that they were from Officer Goode." He further argues that "[t]here was no testimony that what Officer Reyes received from the Camden Police Department had any identifying marks connecting the bags to the Appellant. [Thus,] [t]he State failed to connect the material seized by Officer Goode to the cocaine identified by the crime lab." As this argument was not made below, it is not preserved on appeal. See Rudd v. State, supra.

We affirm.

Jennings and Griffen, JJ., agree.