Jacquelyn Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR03-30

November 5, 2003

JACQUELYN SMITH AN APPEAL FROM CLARK

APPELLANT COUNTY CIRCUIT COURT

[CR01-52]

V. HON. JOHN A. THOMAS, JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

Wendell L. Griffen, Judge

Jacquelyn Smith appeals from an order revoking her probation and challenges the sufficiency of the evidence supporting the revocation. Because a preponderance of the evidence supports that appellant violated one of the terms of her probation by failing to report to her probation officer, we affirm.

On October 9, 2001, appellant pleaded guilty to possession of ephedrine with the intent to manufacture methamphetamine. As a result of her negotiated plea, she was placed on probation for five years and was ordered to pay fines and costs to the Clark County Sheriff's Office, totaling $2,000, at the rate of $45 per month. Appellant's original probation officer was Becky Reeves, who serves in Clark County, where appellant was tried. Because appellant lived in Hot Spring County, her case was transferred to Johnny Green, a probation officer for Hot Spring County.

However, Reeves continued to monitor the Clark County Sheriff's Office list of delinquent payments. Reeves received information that appellant was not living at her reported address. Reeves then contacted Green, and both officers monitored appellant's activity. On May 24, 2002, Reeves filed a petition to revoke appellant's probation, alleging that appellant had violated the terms of her probation by: 1) failing to report as directed; 2) failing to pay supervision fees; 3) failing to pay costs and fines to the Clark County Sheriff's Office; and 4) failing to complete an outpatient substance abuse program.

A revocation hearing was held on October 7, 2002. Reeves testified that appellant was $450 in arrears on her monthly payments and had only paid $155 on her account. Reeves stated that appellant had only made one payment and that payment had been made on June 27, 2002. Reeves also testified that she had spoken with appellant when she was first placed on probation regarding appellant seeking drug treatment from Quapaw House Outpatient Treatment.

Green testified that after appellant's case was transferred, he went to her reported home address, but no one was there. He stated that he questioned appellant on several occasions concerning her failure to pay and that he spoke with her about getting into a drug rehabilitation program. She informed him that she was trying to get a counselor at the Arkansas Rehabilitation Center. Green testified that appellant missed five out of nine meetings with him. He stated that she told him "a couple of times" in February and March 1992 that she was afraid that the prosecutor in Clark County had a warrant for her and would arrest her; the other times, she alleged that she was ill or did not have transportation.

Appellant conceded that she was aware of the terms of her probation. She testified that her home, which had been visited by Green, had been repossessed, and that she was looking for somewhere else to stay. She testified that she worked for her grandmother in her grandmother's beauty shop, and that she could pay the $450 that she owed that day.

Appellant testified that she was never told that she had to complete the drug program "immediately" and that her terms of probation did not indicate when the program had to be completed. She admitted that she had received no drug treatment other than attending Narcotics Anonymous and Alcoholics Anonymous meetings. She testified that she had not received actual drug treatment at either an in-house or outpatient facility because she did not have the money to pay for it. Appellant also testified that she had no one to care for her three children. However, she stated that her husband was now out of jail and could watch the children for her while she seeks treatment. She also indicated her willingness to seek whatever treatment the court ordered.

With regard to her failure to report, appellant testified that she missed five meetings because her car was "torn up," or because she was sick. She admitted that she did not call her probation officer each time she missed a meeting.

The circuit court found appellant guilty of failing to comply with two conditions of her probation: 1) failing to report to her probation officer; and 2) failing to report a change of address to the probation department. The court sentenced her to serve six years in the Arkansas Department of Correction and to complete a long-term drug program while incarcerated.

Appellant raises several arguments on appeal. She argues that the trial court erred in revoking her probation because: 1) failure to report a change of address was not listed as a grounds for revocation; 2) the terms and conditions of her probation did not explicitly provide a date by which a drug program was to be completed; 3) appellant was never advised that her sporadic reporting would be considered a violation of the terms of her probation; 4) her violations were excusable; and 5) the terms of her probation were not explicit because they were modified or altered by her second probation officer.

We hold that the circuit court did not err in revoking appellant's probation. A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. See Ark. Code Ann. § 5-4- 309(d) (Supp. 2003); Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). The State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and the appellate court will not reverse the trial court's decision to revoke probation unless it is clearly against the preponderance of the evidence. See Barbee v. State, supra. We view the evidence supporting revocation in the light most favorable to the State. See Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). The State need only prove one violation of the probation conditions for the trial court to revoke a probation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).

We affirm here because the finding that appellant failed to report to her probation officer is not clearly against the preponderance of the evidence. Appellant attempts to argue that the conditions of probation were not explicit, as required by Arkansas Code Annotated section 5-4-303(g)(Supp. 2003)1, and that the transfer of her case somehow worked to her disadvantage. Appellant maintains that there was no evidence that Green required her to report at specific times or dates, and that she was never "advised" that her sporadic reporting would be considered a violation of the terms of her probation.

Appellant's arguments fail because she offers no convincing authority for her arguments and nothing in the record supports her arguments. She admitted that she received the terms and conditions of her probation, which required her to report as directed to a supervising officer. The undisputed evidence shows that despite the fact that her case was transferred to a probation officer in her home county for her convenience, she missed five out of nine monthly meetings. The fact that the petition to revoke was filed by appellant's original probation officer, who was working in conjunction with her current probation officer, does not indicate that appellant was given contradictory instructions or "mixed signals" from her probation officers.

The circuit court heard appellant's testimony regarding the reasons for her failure to report, and apparently determined that her failure to report was inexcusable. We defer to the trial judge's superior position regarding questions of credibility and weight to be accorded to the testimony in a revocation proceeding. See Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Because the State was only required to prove that appellant inexcusably violated one of the terms of her probation, we affirm the revocation of her probation and do not reach the remainder of her arguments.

Affirmed.

Pittman and Hart, JJ., agree.

1 This statute provides that "If the court suspends the imposition of sentence on a defendant or places him or her on probation, the defendant shall be given a written statement explicitly setting forth the conditions under which he or she is being released."