Horace Howerton v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

HORACE HOWERTON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-836

APRIL 9, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR1996-3383]

HONORABLE JOHN W. LANGSTON CIRCUIT JUDGE

AFFIRMED

Appellant Horace Howerton appeals the revocation of his probation by a judge in Pulaski County Circuit Court. Appellant argues that the trial court erred in denying his motion to dismiss the State's petition to revoke his probation because the State failed to introduce substantial evidence that he had violated the conditions of his probation. We affirm.

In a bench trial, appellant was convicted of commercial burglary and misdemeanor theft of property. The court sentenced him to five years' probation, a $500 fine, and ten days' confinement in the county jail. The conditions of appellant's probation included that he obey all federal and state laws, local ordinances and court orders and that he submit to a drug screen test whenever ordered by the court or the probation officer.

On December 20, 2001, the State filed a petition to revoke appellant's probation, and on March 5, 2002, the State filed an amended petition to revoke. Both petitions were premised on

appellant's violation of his conditions by testing positive for THC, opium, and methamphetamineand by failing to complete drug treatment.

At the hearing on April 1, 2002, appellant's probation officer testified that appellant acknowledged to her that he had signed his probation conditions in May 1997, when he was placed on probation. She stated that one of appellant's probation conditions was that he not use illegal substances while on probation. The probation officer testified as to the many occasions when appellant tested positive for THC, methamphetamine, or both. Beginning on February 28, 2001, appellant tested positive for marijuana, and on December 19, 2001, he tested positive for both marijuana and methamphetamine. On February 14, 2002, appellant tested positive for marijuana as well as methamphetamine, and on February 21, 2002, he was positive for marijuana only. Finally, on February 26, 2002, he tested positive for marijuana and methamphetamine. The probation officer also testified as to her unsuccessful attempts to get appellant into drug treatment. She admitted to giving appellant "a couple of chances" to get himself "cleaned up." However, appellant repeatedly failed. At the conclusion of the testimony, the trial judge found that appellant had violated the terms of his probation in that he tested positive for THC. As a result, his probation was revoked, and he was sentenced to three years' imprisonment.

In a revocation hearing, the burden is upon the State to prove a violation of a condition of the suspended sentence by a preponderance of the evidence; on appellate review, the trial court's findings are upheld unless they are clearly against a preponderance of the evidence. Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001) (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992)). Since a determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, this court defers to the trial court's superior position. Id.

Appellant argues that the trial court erred in denying his motion to dismiss the State'spetition to revoke his probation because the State failed to introduce substantial evidence that he had violated the conditions of his probation. Although appellant concedes that the State proved by a preponderance of the evidence that, while on probation, he ingested marijuana and methamphetamine, he asserts that the probation officer never testified that possession of marijuana or methamphetamine was a violation of Arkansas law, and the State never asked the court to take judicial notice of the statutes regarding the use of marijuana and methamphetamine. In Lively v. State, 25 Ark. App. 198, 755 S.W.2d 238 (1988), this court held that it was unnecessary for the State to offer evidence to the trial court, sitting without a jury, that cocaine was listed by the Health Department as a Schedule II controlled substance or that cocaine is classified by the legislature as a narcotic drug. In that case, quoting Johnson v. State, 6 Ark. App. 78, 638 S.W.2d 686 (1982), this court explained that:

Appellant contends that as this regulation was not tendered for judicial notice or otherwise proved in the trial court we are required to reverse his conviction on jurisdictional grounds. It is not necessary to introduce evidence of statutes in this state. The court judicially knows them. [Citations omitted.] Nor is it necessary to introduce evidence of regulations of the State Health Department promulgated pursuant to statutory authorization. Courts take judicial notice of such rules and regulations of boards and agencies which are adopted pursuant to law. [Citations omitted.] As the regulation listing Meperidine as a Schedule II controlled substance was a matter within the judicial knowledge of the trial court it was not error for him to exercise the jurisdiction conferred by the regulation.

6 Ark. App. at 81, 638 S.W.2d at 688. Furthermore, Ark. R. Evid. 201(c) (2002) states that, "a court may take judicial notice, whether requested or not."

Appellant also argues that the State never proved that attending a treatment program was one of his probation conditions. However, the State need prove only one violation of a condition of probation, which it accomplished and which was admitted. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001); Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). We hold that there was sufficient evidence upon which to revoke appellant's probation and affirm.

Gladwin and Neal, JJ., agree.