Karen Sue Foster v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KAREN SUE FOSTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-133

JUNE 15, 2005

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[NO. CR-2003-178]

HONORABLE LANCE LAMAR

HANSHAW, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Karen Sue Foster pleaded guilty to possession of cocaine, furnishing prohibited articles, and public intoxication on February 20, 2004. She was sentenced to probation for a time period necessary for completion of drug court. On July 26, 2004, the State filed a petition to revoke Ms. Foster's probation, alleging that she violated her conditions by failing to report for drug counseling meetings, testing positive for methamphetamine, and failing to pay probation fees. After a revocation hearing, the trial court revoked Ms. Foster's probation and sentenced her to ten years in prison. Ms. Foster now appeals, arguing that the trial court's decision to revoke was clearly against the preponderance of the evidence because her failure to comply with the conditions of her probation was excusable. We affirm.

Arkansas Code Annotated section 5-4-309(d) (Supp. 2003) provides, "If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his or her suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation." On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004). Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given the testimony, we defer to the trial court's superior position in that regard. Id.

On June 25, 2004, a drug court hearing was held to address the issue of Ms. Foster's absences from counseling sessions. At the hearing, the trial court stated that it had been given information that Ms. Foster was absent on June 16th, 18th, and 21st. The trial court further noted that due to the absences, Ms. Foster was not available for drug screens. Ms. Foster informed the judge that her absences were due to illness, and that she had documentation of an emergency room visit on June 21st. Ms. Foster indicated that she had an infection related to bronchitis. The trial court stated, "I personally feel like you are using your illness as a crutch," and indicated that due to her third instance of noncompliance with the requirements of drug court, Ms. Foster was going to have to spend one year in the regional punishment facility.

The State subsequently filed its petition to revoke, and a probable cause hearing was held on July 30, 2004. At the hearing, the prosecutor indicated that the petition was filed because Ms. Foster was not eligible to go to the regional punishment facility. Linda Garron, who was Ms. Foster's probation officer, testified that the regional punishment facility would not take Ms. Foster because of prior violent offenses. The trial court found probable cause to set a hearing on the State's revocation petition, and the hearing was scheduled for September 14, 2004. Ms. Foster failed to appear, and the hearing was rescheduled and held on October 29, 2004.

At the revocation hearing, Ms. Garron testified that Ms. Foster violated her conditions by missing fourteen counseling meetings, and that none of the absences were excused. Ms. Garron further testified that Ms. Foster twice tested positive for methamphetamine, and was delinquent on supervision fees.

Ms. Foster testified on her own behalf, and acknowledged missing counseling sessions. However, she stated, "I had excuses for nearly every one I missed."

For reversal of her revocation, Ms. Foster contends that her failure to comply with her conditions was excusable. She notes that, during the June 25, 2004, hearing, she explained to the trial court that her absences from meetings were due to illness. Ms. Foster further asserts that she gave plausible reasons for why she was unable to comply with her conditions at the final revocation hearing.

Ms. Foster's argument is without merit. Ms. Garron testified that Ms. Foster missed fourteen meetings and that none of the absences were excused. While Ms. Foster testified that "nearly every one" of her absences were excused, the trial court was not required to accept her testimony as truth. See Stone v. State, 43 Ark. App. 203, 863 S.W.2d 319 (1993). And even if Ms. Foster's testimony was truthful, she did not indicate that every missed meeting was excused. Moreover, there was evidence that Ms. Foster tested positive for methamphetamine and was delinquent on supervision fees, and Ms. Foster offered no excuse for these violations. The State need only prove one violation in order to support revocation. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). We hold that the trial court's finding that Ms. Foster inexcusably failed to comply with a condition of probation was not clearly against a preponderance of the evidence.

Affirmed.

Glover and Neal, JJ., agree.