Delarett Carter v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

DELARETT CARTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-948

October 8, 2003

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

CR-99-221-2

HON. H.A. TAYLOR, JR., JUDGE

AFFIRMED

Larry D. Vaught, Judge

On July 28, 1999, appellant Delarett Carter entered a negotiated plea to robbery, a Class B felony, pursuant to Ark. Code Ann § 5-12-102 (Repl. 1997). He was sentenced to five years of probation with fines, costs, and probation fees to be paid at a rate of twenty dollars per month.

On February 23, 2001, the State filed a petition to revoke appellant's probated sentence. The petition stated that appellant had failed to report to his probation officer, failed to follow the instructions of his probation officer, and tested positive for marijuana on October 18, 2000. A hearing was set for March 26, 2001, but appellant failed to appear for the proceeding. An alias warrant was issued, and appellant was arrested on January 14, 2002. A hearing was held on the State's petition on February 11, 2002. At the close of the hearing, the trial judge found that appellant had violated the terms of his probation, revoked appellant's probation, and sentenced him to twelve years in the Arkansas Department of Correction. On appeal, appellant contends that the trial court erred in denying his motion for directed verdict when there was no direct proof presented during the State's case that appellant had been given notice of the probation rules applicable to his case. We affirm.

In order to revoke appellant's probation, the trial court must find by a preponderance of the evidence that a defendant inexcusably violated a condition of probation. Ark. Code Ann. § 5-4-309(d) (Supp. 2001). The burden is on the State to prove the ··²SDU_6²····²SDU_6²··violation of a condition of that probation or suspension by a preponderance of the evidence. See Ark. Code Ann. § 5-4-309 (Supp. 2001); Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended sentence revocation. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Thus, the burden on the State is not as great in a revocation hearing. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).

The State called a single witness at the revocation hearing, appellant's probation officer, Ms. Felicia Reed. Appellant notes, however, that Ms. Reed was not his original probation officer and was not the individual who reviewed the rules of his probation with him. She testified to the following:

(1) She did not possess a copy of the rules of appellant's probation;

(2) Her case file narrative indicated that the rules of probation were read and signed by appellant, but there was no proof in the file other than the narrative;

(3) Appellant had failed to report to probation officer, not paid his fees, tested positive for marijuana, and failed to attend drug abuse class.

Upon the conclusion of Ms. Reed's testimony, the State rested its case. Appellant's counsel moved for a directed verdict, stating that the State had not presented sufficient evidence to the court that appellant's probation should be revoked. Specifically, he asserted that there was no direct proof that appellant had read and signed the rules of his probation.

At that point, the trial judge, at the request of the prosecutor, allowed the State to reopen its case. Again, upon request by the State, the trial court took judicial notice that a copy of the form listing the rules and conditions of appellant's probation, signed by appellant, was in the court's file.1 Appellant did not object to the reopening of the State's case or the trial court's taking judicial notice of the form and proceeded to call his first witness. At the conclusion of the hearing, the State requested a six-year commitment to the Arkansas Department of Correction. The trial court revoked appellant's probation and sentenced him to twelve years in the Arkansas Department of Correction.

Appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Arkansas Code Annotated section 5-4-303 (Supp. 2001) provides that the trial court shall impose conditions on a defendant sentenced to probation to assist him or her in leading a law abiding life. Appellant maintains that, prior to the time the State rested its case in the revocation hearing, the trial court had not been presented with any direct proof that appellant had received any of the prescribed rules regarding his probation or what those rules may or may not have encompassed. He claims that the trial court would have had to speculate as to whether or not the rules had been received by appellant and as to their content as well. As an example, appellant points out that at the hearing, the State relied on Ms. Reed's testimony that appellant had not attended drug abuse class; however, there was no proof introduced that he was ever required to do so.

Appellant argues that the State had the burden of proof to demonstrate that he had knowledge of the rules and conditions of his probation and that he inexcusably violated them. He claims the State failed to make its case prior to resting its case, and that it was improper for the trial court to allow the State to reopen its case to present proof which cured its insufficient evidence after appellant pointed out the insufficiency of the evidence. Appellant asserts that the trial judge erred in not entering a directed verdict, and urges the court to reverse the revocation of his probation.

We review the sufficiency of the evidence supporting revocation by viewing the evidence in the light most favorable to the State. Sisk v. State, __ Ark. App. __, 101 S.W.3d 248 (2003). The State contends that substantial evidence that appellant violated the conditions of his probation was produced at the hearing. Arkansas Code Annotated section 5-4-310(c)(2) (Supp. 2001) permits 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. Additionally, the State need only prove one violation of the conditions of probation for the trial court to revoke a probation. Sisk, supra.

In the instant case, Ms. Reed testified that appellant had not reported to his probation officer since November 2000 and had not made any payments. Appellant did not dispute at trial that reporting to his probation officer and making the required payments were actual conditions of his probation; however, he argues on appeal that the State did not present proof that they were indeed conditions. Additionally, Ms. Reed testified that appellant's probation file contained a violation report which indicated that failure to report and make payments were also violations of the conditions of his probation approximately a year prior to the hearing.

Appellant made no objection at the time the trial court allowed the State to reopen its case and took judicial notice that a copy of the "missing" list of conditions, signed by appellant, was in the court's file; therefore, appellant is barred from raising an argument on this point for the first time on appeal. Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001).

Even if appellant were not procedurally barred from raising the claim, the challenged evidence was properly admitted. Although the requirements of Rule 33.1 of the Arkansas Rules of Criminal Procedure regarding motions for dismissal and directed verdicts do not apply to revocation hearings, General v. State, 79 Ark. App. 219, 86 S.W.3d 15 (2002), appellant did make such a motion and argues on appeal that the court should not have allowed the State to reopen its case. However, Rule 33.1 specifically allows the trial court the option of either granting the motion or allowing the State to reopen its case and supply the missing proof. Tester v. State, 342 Ark. 549, 553, 30 S.W.3d 99, 102 (2000).

Once appellant made a motion for directed verdict, the trial court could subsequently allow the State to reopen its case to cure the alleged deficiency, and could then properly take judicial notice of a court record in its file. See Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). Appellant attempts to distinguish the instant case from Beck, because in Beck there was not a motion for directed verdict pending at the time the case was reopened. However, because the relevant rule allows the trial court the option of either granting the motion or allowing the opposing side to reopen its case and supply the missing proof, this attempted distinction is not relevant.

We find that there was substantial proof of the required elements to support the trial court's finding, by a preponderance of the evidence, that appellant violated the conditions of his probation; and further, that the trial court did not err in denying appellant's motion.

Affirmed.

Crabtree and Baker, JJ., agree.

1 The record contains a file-marked copy of the appellant's "Probation Assignment and Agreement Form," which listed the conditions of his probation, was signed by appellant, and dated August 6, 1999.