Shawn Beaird v. State of Arkansas

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ar03-928

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-928

February 11, 2004

SHAWN BEAIRD AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CR02-121-4]

V. HON. TOM SMITHERMAN, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Shawn Beaird appeals from the revocation of his probation. He argues that the State failed to prove that he violated any terms of his probation. We disagree and affirm.

On June 18, 2002, appellant pleaded guilty to theft of property of more than $500, and the trial court sentenced him to three years' probation. On November 18, 2002, the State filed a petition to revoke appellant's probation, alleging that he had not reported to his probation officer since July 11, 2002; that he had failed to pay supervision fees and court costs; that he had failed to keep his probation officer informed of his employment status; and that he failed to report a change of address.

A hearing on the matter was held on July 1, 2003. The sole witness was Gene Johnson, appellant's probation officer. Johnson testified that appellant had been ordered to report to him at least monthly, but had last reported on July 11, 2002. Johnson visited appellant's listed address on two occasions. He did not specify the date of his first visit, but he stated that on his first visit, no one was home and he left a note. He visited the second time on October 29, 2002. On that occasion, Johnson spoke with a woman, whom he assumed was appellant's sister, although he did not verify the woman's identity. The woman informed Johnson that appellant had been gone for three months.

Johnson further testified that the last information he had concerning appellant's employment was that as of July 11, 2002, appellant was employed by a construction company. Johnson was not aware whether appellant had paid his supervision fees, and he had not checked prior to coming to the hearing to see whether appellant had paid his court costs. When asked on cross-examination if appellant contacted Johnson after the revocation petition was filed, Johnson stated that if so, he did not document the contact. He admitted that there have been times that he had discussions with probationers that he did not document.

After Johnson testified, appellant moved to dismiss the petition to revoke. The trial court denied appellant's motion and found that appellant had willfully and inexcusably violated the conditions of his probation by failing to report to his probation officer as directed and by moving from his approved residence without permission from his probation officer. The court sentenced appellant to serve a term of five years in the Arkansas Department of Correction.

Appellant's sole argument is that Johnson's testimony is not sufficient proof that he willfully and inexcusably violated the terms of his probation. For support, appellant asserts that Johnson acknowledged there may have been contact with him that Johnson did not document; that Johnson did not know when he had left the note at appellant's home; and that Johnson could not identify the person with whom he spoke at appellant's residence.

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. Ark. Code Ann. ยง 5-4-309(d) (Supp. 2003); Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). We will not reverse the trial court's decision to revoke probation unless it is clearly against the preponderance of the evidence. Id. We view the evidence supporting revocation in the light most favorable to the State. 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. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). Because 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 to gauge these matters. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).

We hold that the trial court did not err in revoking appellant's probation. It is true that Johnson's testimony did not support all of the allegations in the State's petition to revoke. However, the State need only prove that appellant violated a single condition of his probation. Brock, supra. Here, Johnson's undisputed testimony established that, prior to the filing of the petition to revoke, appellant did not report in August, September, or October of 2002. Even if appellant did contact Johnson after the petition to revoke had been filed, appellant's previous failure to report would still be a sufficient basis upon which the trial court could revoke his probation.

Further, the State was not required to prove that the person who told Johnson that appellant moved was his sister or was even a relative. The weight to be accorded to Johnson's testimony was a matter for the trial court to determine. Bradley, supra. Given that appellant failed to report as ordered, could not be located by his probation officer on two personal visits within the first three months after being placed on probation, and that the probation officer in October 2002 was informed by someone at appellant's residence that appellant had been gone for three months, the trial court was entitled to find that appellant also violated the terms of his probation by changing his address without approval.

Affirmed.

Bird and Crabtree, JJ., agree.