Rickie Allen Smith v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar04-206

DIVISION I

RICKIE ALLEN SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-206

JUNE 29, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR 02-352]

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Terry Crabtree, Judge

This is a no-merit case. The Sebastian County Circuit Court revoked the suspended sentence of the appellant, Rickie Allen Smith, and as a result, it sentenced him to nine years and 270 days in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that any argument advanced by appellant in an appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all objections, motions and requests made by either party with an explanation as to why each adverse ruling is not a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file pro se points; appellant has not filed any points. We affirm the revocation and grant counsel's motion to withdraw.

On July 5, 2002, appellant entered a plea of guilty to the charge of theft of property, a class C felony. The trial court withheld imposition of his sentence for three years based upon certain terms and conditions. The trial court also ordered appellant to pay restitution of $1,434.25, payable at a rate of $50 per month beginning August 15, 2002. Additionally, the trial court ordered appellant to serve ninety-five days in the Sebastian County Detention Center. On February 26, 2003, the State filed a petition to revoke based upon appellant's failure to pay restitution as ordered by the court. On March 5, 2003, the petition was withdrawn based on appellant's signed agreement to resume payments with the next $50 payment due April 15, 2003. On June 3, 2003, the State filed an amended petition to revoke alleging that appellant failed to pay his restitution as ordered by the court. The last payment was received on March 12, 2003, which was a bond forfeiture. At the time the amended petition was filed, the remaining balance was $1,024.25. The amended petition alleged also that appellant had been arrested on May 31, 2003, for possession with intent to deliver cocaine and possession of drug paraphernalia, which violated the terms and conditions of his probation.

Appellant's counsel filed an Anders brief alleging that any argument advanced by appellant in an appeal of his revocation would be wholly frivolous. The decision to revoke is an adverse ruling that must be addressed by counsel in an Anders brief. Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004). Counsel did in fact address this issue in his brief. The supreme court has held that a defendant in a revocation proceeding is not required to comply with Ark. R. Crim. P. 33.1 regarding motions for directed verdict in order to preserve the issue of the sufficiency of the evidence. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370(2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Here, however, appellant made a directed verdict motion at the close of the State's case.

To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. ยง 5-4-309 (Supp. 2001). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Rudd, supra. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Richardson, supra.

The trial court held a revocation hearing on November 19, 2003. Pursuant to appellant's request, the trial court allowed him to proceed pro se during the revocation hearing after fully apprising appellant of his right to appointed counsel and the dangers of proceeding pro se. During the hearing, two witnesses, Officer Don Bales and Officer Greg Napier, testified regarding appellant's arrest on May 31, 2003, at the School House Apartments for possession with intent to deliver cocaine and possession of drug paraphernalia. The officers testified that appellant's girlfriend, Ginger Hall, consented to a search of her apartment where the police found appellant and various drug paraphernalia andcocaine in plain view. As a result, the police arrested appellant and another occupant of the apartment.

Also during the revocation hearing, the State offered into evidence its first exhibit, appellant's restitution payment ledger. It reflected that appellant was ordered to pay $1,434.25 in restitution at a rate of $50 per month beginning in August 2002. The ledger demonstrated that appellant's remaining balance was $1,024.25.

After the hearing, the trial court found that based upon appellant's restitution payment ledger, he had failed to make restitution. The trial court also found that, based upon Officers Bales's and Napier's testimonies, appellant had violated the terms and conditions of his probation by his actions leading to his arrest for drug-related charges on May 31, 2003. On November 21, 2003, the trial court filed a judgment and commitment order revoking appellant's probation for theft of property and sentenced him to nine years and 270 days in the Arkansas Department of Correction.

In its first exhibit, the State offered evidence of appellant's noncompliance with the terms and conditions of his probation by failing to make payments for his restitution, and appellant did not dispute this. Therefore, we cannot say that the court's finding that appellant inexcusably violated the terms of his probation is clearly against the preponderance of the evidence. See Petty v. State, 31 Ark. App. 119, 788 S.W.2d 744 (1990). As the State need only prove that the defendant committed one violation of the conditions, Rudd, supra, we need not address whether appellant committed other violations. Therefore, we do not examine the sufficiency of the drug-related charges lodged against appellant after his May 31, 2003, arrest.

Appellant made three objections during the revocation proceeding that we will discuss. Two of the objections occurred during the direct examination of Officer Don Bales. The State asked the officer how he knew that appellant would be in Ginger Hall's apartment. Appellant objected on the basis of hearsay, and the trial court denied the objection. At another time, the State asked Officer Bales if he entered Hall's apartment. The officer answered, "Yes, we did after Ms. Hall came to the door and asked what was going on. We told her we were serving a felony warrant on [appellant] and asked if we could speak with her. She said that that was fine, and she walked back into her--" Appellant again objected on the basis of hearsay. The trial court ruled in the State's favor and replied, "No, he just said what she did, that she walked back into the room. . ."

Appellant made two hearsay objections during the revocation hearing. We note that certain rules of evidence, including the hearsay rule, are not applicable in revocation proceedings as they would be in a trial. Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000); Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). Therefore, even if the court had violated the hearsay rule, it would not necessarily warrant a meritorious appeal. Id.

The third objection that appellant made occurred during Officer Bales's direct examination. The following colloquy transpired:

THE STATE: When you say "Cadillac," you are referring to who?

OFFICER BALES: Mr. Smith, Rickie Smith.

THE STATE: Is that what you know him as?

OFFICER BALES: Yes, we also said very loudly, "Ginger, we have a felony warrant for Cadillac's arrest. We don't want to cause you any trouble, but we want Cadillac."

APPELLANT: I object.

THE COURT: What is the basis?

APPELLANT: Because at the hour, when he said he was at the door, I am the one that asked who was it.

OFFICER BALES: Right.

APPELLANT: It wasn't no Ginger Hall at no door.

Although appellant objected to this line of questioning, the trial court never ruled on the objection. It is appellant's obligation to obtain a ruling in order to properly preserve an issue for review. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001). Failure to obtain a ruling on an issue at the trial court level, including a constitutional issue, precludes review on appeal. Id. Therefore, we cannot say that appellant's third objection had merit.

Next, we move to the two objections made by the State and sustained by the trial court. The State objected when the court allowed appellant to voir dire Officer Bales about an exhibit, the search-consent form signed by Ginger Hall. The trial court stated to appellant, "Yes, just ask questions that deal with that exhibit and not other matters. You are going to get another chance to examine him, to cross examine him. I will give you another opportunity, but you wanted to ask him about the search warrant or the consent to search. So, I want you to just address questions about that." Then the following colloquy occurred:

APPELLANT: Okay. When you are saying when you know I was at the School House [Apartments] that evening, how did you know I was there?

OFFICER BALES: Like I said, you had told us in the previous incident where she was arrested for DWI that you guys lived there.

APPELLANT: Excuse me, you are not answering the question.

OFFICER BALES: That's how I ended up there, Mr. Smith.

APPELLANT: How did you know I was there?

OFFICER BALES: I didn't.

THE STATE: Your Honor, again, I would make the same objection. I don't think that he is asking questions about the exhibit.

THE COURT: Yes, you are asking him something about how he got there in the first place. You have gone into that and you will get another opportunity to ask him about that. All the Prosecutor wants to do right now is for me to look or for him to introduce and for me to look at that consent to search that was signed by somebody else in that house or apartment.

In this instance, appellant specifically asked the trial court for an opportunity to voir dire Officer Bales about the consent form. In effect, the trial court allowed appellant to interrupt the State's direct examination of the officer with a brief cross-examination concerning one exhibit. In allowing appellant to engage in an inquiry about the consent form, the trial court limited appellant's questions to the that exhibit. Furthermore, the trial court assured appellant that he would have an opportunity to fully cross-examine Officer Bales after the State finished its direct-examination. For this reason, we cannot say that the trial court abused its discretion in imposing this restriction. See Warren v. State, 314 Ark. 192, 862 S.W.2d 222 (1993).

Finally, the State made an objection during the cross-examination of Officer Greg Napier. Appellant asked the officer, "Okay. Now, I want to ask you something else. Me and you, you know, I haven't ever never had a bad word, never disrespected you or nothing. Why did you lie so much?" The State objected, and the trial court sustained the objection as argumentative. Questions on cross-examination should not be conjectural, speculative or argumentative. Maxwell v. State, 284 Ark. 501, 683 S.W.2d 908 (1985); Dillard v. State, 260Ark. 743, 543 S.W.2d 925 (1976). As such, we cannot say that the trial court erred in sustaining the State's objection.

Affirmed; motion to be relieved granted.

Hart and Bird, JJ., agree.