Eric Hicks v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

ERIC HICKS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-881

APRIL 16, 2003

APPEAL FROM CHICOT COUNTY CIRCUIT COURT

[NO. CR00-15-5]

HONORABLE JERRY MAZZANTI, CIRCUIT JUDGE

AFFIRMED

In 2001, appellant Eric Hicks pled guilty to sexual abuse in the first degree, for which he was sentenced to three years' probation. The State filed a petition to revoke Hicks's probation in February 2002, alleging that Hicks had violated the conditions of his probation by committing the additional offenses of commercial burglary, theft of property, and criminal mischief. The petition also alleged that Hicks had failed to contact the Arkansas Department of Community Punishment to set up an intake appointment, to report to his probation officer, to pay his monthly probation fees, to pay his court costs, and to attend sexual abuse counseling. After a revocation hearing, the trial court found that Hicks had violated the conditions of his probation as alleged in the petition and sentenced him to five years' imprisonment. On appeal, Hicks argues that there was insufficient evidence to revoke his probation, that he did not inexcusably fail to comply with the conditions of his probation, and that he was never served with the petition to revoke his probation. We affirm.

At the revocation hearing held on April 30, 2002, Hicks's probation officer, Paula Wright, testified that Hicks never contacted the intake officer to set up an intake appointment, as he wasrequired to do within seventy-two hours of being sentenced according to the conditions of his probation. Wright testified that Hicks also failed to report for his monthly probation meetings between February 2001 and October 2001. In addition, Wright stated that Hicks failed to report his arrest in October 2001 for commercial burglary, theft of property, and criminal mischief. Wright further testified that Hicks had failed to pay any probation fees until December 2001, that he was approximately $250 in arrears on his probation fees, and that he had not made any payments toward his court costs. Eudora Police Officer Glen Anderson testified that in October 2001, Hicks voluntarily confessed to breaking into Barton's Lumber Company and stealing several items from inside the store. Anderson testified that Hicks listed the items that he had stolen and that the list was an exact match with items that the officers had recovered.

For his first point on appeal, Hicks argues that there was insufficient evidence to support the trial court's decision to revoke his probation. In a revocation proceeding, the State has the burden of proving by a preponderance of the evidence that the defendant inexcusably violated the conditions of his probation. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). In order for the trial court to revoke a defendant's probation, the State is required to prove only one violation of the conditions of probation. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). On appeal, we do not reverse the trial court's decision to revoke a defendant's probation unless it is clearly against the preponderance of the evidence. Id.

Hicks contends that the evidence was insufficient to show that he violated the conditions of his probation by committing the offenses of commercial burglary, theft of property, and criminal mischief. Hicks asserts that he had not been convicted of those new charges, and he argues that the only evidence presented was his confession and the officer's testimony that he had recovered the same kind of tools that were stolen from the business. However, because the State's burden in arevocation proceeding is only a preponderance of the evidence, evidence that is insufficient to support a criminal conviction may be sufficient to revoke a defendant's probation. Leflore v. State, 79 Ark. App. 332, 87 S.W.3d 839 (2002); Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Given Hicks's confession that he had stolen certain items from the store and Officer Anderson's testimony that the same items that Hicks had admitted to stealing were recovered by the officers, a preponderance of the evidence supports the trial court's finding that Hicks violated the conditions of his probation by committing an offense punishable by imprisonment. While Hicks contends that there was a question as to Anderson's credibility, this court defers to the superior position of the trial court in the determination of the credibility of witnesses. Lamb v. State, supra.

Hicks also claims that the conditions of his probation were never entered into the record because when the State requested that the trial court take judicial notice of the conditions, the court did not rule on the motion at that time. However, after Hicks argued during his motion to dismiss that the court never made a ruling on the State's request and that the conditions were not a part of the record, the court stated that they were in its file and formally granted the request to take judicial notice of the conditions. The trial court also referred to the conditions of Hicks's probation during the hearing, and these conditions are contained in the abstract and record on appeal. Thus, Hicks's argument that the conditions of his probation were never made a part of the record is without merit.

For his second argument, Hicks contends that he did not inexcusably fail to comply with the conditions of his probation. Hicks asserts that he has a diminished mental capacity. He also argues that his probation officer testified that there was no record of him being on probation and that as soon as she met with him after he was arrested in October 2001, he fully cooperated and complied with the terms of his probation. Hicks argues that this evidence excused his failure to initially comply with the payment and appearance terms of his probation. However, Hicks does not addresshis confession to the crimes of commercial burglary and theft of property or argue that his behavior in committing these offenses was excusable. Only one violation of a condition of probation must be shown in order to revoke a defendant's probation, Rudd v. State, supra, and because we have previously found that a preponderance of the evidence supports the revocation of Hicks's probation based on his commission of additional crimes, we do not need to address whether his failure to report or to pay his fees and costs was excusable.

Finally, Hicks argues that he was never served with the petition to revoke his probation and that his revocation should be reversed on this basis. The State, however, correctly contends that Hicks did not raise this issue to the trial court at any point during the proceedings. This court will not address an argument raised for the first time on appeal. Hill v. State, 341 Ark. 211, 16 S.W.3d 539 (2000). Therefore, we affirm the trial court's decision revoking Hicks's probation.

Affirmed.

Stroud, C.J., and Griffen, J., agree.