Chad Edward Gillyard v. State of Arkansas

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ar03-926

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CHAD EDWARD GILLYARD

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-926

MARCH 24, 2004

APPEAL FROM FAULKNER COUNTY CIRCUIT COURT

[NO. CR2000-11]

HONORABLE CHARLES E. CLAWSON, JR., CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

In August 2001, appellant Chad Gillyard pled guilty to possession of cocaine with intent to deliver, for which he was sentenced to four years' probation and a $2500 fine. The State filed a petition to revoke Gillyard's probation in April 2003, alleging that he had violated the conditions of his probation by using illegal drugs, failing to complete court-ordered substance abuse treatment, and failing to pay his fines and costs as directed. After a revocation hearing, the trial court found that Gillyard had violated the conditions of his probation and sentenced him to five years' imprisonment. On appeal, Gillyard argues that the trial court erred in revoking his probation as there was insufficient evidence that he had violated a term or condition of the probation. We affirm.

At the revocation hearing held on June 16, 2003, Gillyard's probation officer, Terry Rowlett, testified that Gillyard was placed on probation in August 2001 and that he transferred to Conway County after approximately one month. Rowlett stated that Gillyard's substance-abuse program leader, Ms. Dunn, referred him to a moral recognition therapy group and that he went to only three sessions and did not return. Gillyard was also referred to an inpatient drug rehabilitation program at Freedom House, but Rowlett testified that he was kicked out for having a bad attitude and not wanting to stay. Rowlett further stated that Gillyard failed to report to Dunn as ordered on two occasions. According to Rowlett, Gillyard was sent back to her by the Conway Probation Office in December 2002. Rowlett testified that, although Gillyard did report to her each month, he failed to report on the day that he was scheduled on a couple of occasions. Rowlett also testified that Gillyard failed fourteen of fifteen drug tests and that, after testing positive for marijuana in April 2003, the petition to revoke was filed. Rowlett stated that, to her knowledge, Gillyard had not completed drug treatment and did not show any interest in getting treatment. Rowlett further testified that Gillyard was behind in paying his fines and court costs. Although Gillyard should have paid $1800 by the date of the hearing, Rowlett stated that he had only paid $515. Rowlett testified that Gillyard did have sporadic employment while on probation.

Gillyard testified that he had a drug problem before being put on probation but that he had "straightened up" now. He stated that he had looked for drug treatment programs but could not find any and that he left Freedom House because he could not afford it. He admitted that he did not complete the moral recognition therapy program. Gillyard testified that he had not used drugs in four months and that he could pass a drug test. He asked that the court continue his probation because his life was "back on a straight path."

After hearing the evidence, the trial court found that the State had proven by a preponderance of the evidence that Gillyard was in violation of the terms and conditions of his probation. The court noted that Gillyard had failed fourteen of fifteen drug tests and that efforts to provide drug treatment had been unsuccessful. The court stated that this was the first petition that had been filed to revoke Gillyard's probation, even though it was not the first time that he was in violation of his probation. The trial court therefore revoked Gillyard's probation and sentenced him to five years' imprisonment.

Gillyard 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. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). 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. Since the determination of a preponderance of the evidence in a revocation proceeding turns on questions of credibility and weight to be given testimony, this court defers to the trial judge's superior position in this regard. Id. 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).

Although the State contends that Gillyard's argument is not preserved for appellate review because he did not object or make a motion to dismiss the probation petition based on insufficient evidence to the trial court, it is well-settled that a defendant may challenge the sufficiency of the State's proof on appeal from a revocation in the absence of a directed-verdict motion or motion to dismiss. See, e.g., Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); Nelson v. State, ___ Ark. App. ___, ___ S.W.3d ___ (Jan. 21, 2004); General v. State, 79 Ark. App. 219, 86 S.W.3d 15 (2002); Rudd v. State, supra. The cases upon which the State relies in asserting that this issue is not preserved are distinguishable, as they involve procedural or evidentiary objections, which must still be raised below in a revocation proceeding in order to preserve the argument for appeal. See Nelson v. State, supra (holding that argument as to State's failure to present written list of probationary conditions was not preserved where defendant did not object on that basis to the trial court); accord Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984). Because Gillyard was not required to raise the issue of the sufficiency of the evidence supporting his revocation to the trial court in order to preserve the issue for appeal, this court may address the merits of his argument.

Gillyard argues that the trial court's findings that he had failed drug tests and that efforts to provide drug treatment had been unsuccessful are not supported by the preponderance of the evidence. Gillyard asserts that the evidence showed that, although he had struggled, he did have success with stopping his addiction and had turned his life around. He also contends that the court ignored Rowlett's testimony on cross-examination that she had only supervised Gillyard for one month and that she prefaced her testimony with the disclaimer, "to my knowledge." Gillyard argues that the trial court also ignored the evidence that he had reported each month and that he only missed the exact date on a couple of occasions. In addition, Gillyard asserts that the court ignored the evidence that he did not have sufficient income to pay for drug treatment and that he began looking for a treatment program once he could afford it.

Contrary to Gillyard's argument, the trial court's revocation of his probation was supported by a preponderance of the evidence. The evidence showed that Gillyard had failed fourteen out of fifteen drug tests, that he had not completed court-ordered drug treatment, and that he did not show any interest any getting treatment. Although he argues that he left the program at Freedom House because he could not pay for it, he offered no excuse for not completing his moral recognition therapy. Also, contrary to his assertions, Gillyard's probation officer, Rowlett, testified that she had supervised him for one month in 2001 and that he had been transferred back to her in December 2002, where she supervised him until the time of his revocation hearing in June 2003. The trial court was not required to believe Gillyard's testimony that he did not complete drug treatment only because he could not afford it and that he had turned his life around, and to the extent that he is challenging the credibility of Rowlett's testimony, this court defers to the trial judge's superior position in evaluating the credibility of witnesses and the weight to be given their testimony. Cheshire v. State, supra. Moreover, the evidence also showed that Gillyard was behind on his payments toward his fine and court costs, and he does not challenge this evidence. The State is required to prove only one violation of the conditions of probation, Rudd v. State, supra, and there was evidence that Gillyard violated several conditions of his probation in this case. Thus, the trial court's revocation of Gillyard's probation was not clearly against the preponderance of the evidence, and we affirm.

Affirmed.

Neal and Vaught, JJ., agree.