Travis J. Pearson, Jr. v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-244

DIVISION III

CACR05-244

October 26, 2005

TRAVIS J. PEARSON, JR. AN APPEAL FROM THE

APPELLANT CHICKASAWBA DISTRICT OF THE

MISSISSIPPI COUNTY CIRCUIT COURT v. [CR-02-331]

STATE OF ARKANSAS HONORABLE JOHN FOGLEMAN,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

On May 5, 2003, appellant Travis J. Pearson, Jr., was convicted of battery in the second degree and sentenced to sixty months' supervised probation. Following appellant's January 16, 2004, arrest for felony theft of property and misdemeanor theft of property, the State filed a petition for revocation. The Mississippi County Circuit Court found that appellant had violated the terms and conditions of his probation. He was sentenced to five years in the Arkansas Department of Correction with an additional five years suspended. On appeal, appellant asserts that (1) the trial court erred in admitting into evidence and relying upon hearsay evidence that was objected to by appellant; and (2) the trial court erred in finding appellant failed without reasonable cause to report to his probation officer insofar as there was no testimony that the failure to report was willful.

Because appellant's second argument is essentially a challenge to the sufficiency of the evidence, in order to preserve appellant's freedom from double jeopardy, we consider it prior to all other trial errors. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). To revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Jones v. State, 83 Ark. App. 186, 119 S.W.3d 48 (2003). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. 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. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).

The evidence at the revocation hearing established that on January 16, Steven Bracken reported to the Gosnell Police Department that his cell phone was missing after appellant left Mr. Bracken's house. That same day the Gosnell Police Department issued a report of a stolen vehicle. Immediately after the report, Officer Jim Hogan made contact with the vehicle. He found appellant with the vehicle. Officer Hogan placed appellant under arrest, and while performing a search incident to arrest, he found Mr. Bracken's cell phone in appellant's pocket.

Trey Johnson, appellant's probation officer, testified that part of appellant's probation required that appellant regularly report. He said that, in September and November 2003, appellant had failed to report. He said that appellant was also delinquent in the payment of his probation fees.

Appellant testified that he gave Mr. Bracken thirty dollars in exchange for borrowing his cell phone. He acknowledged that he had failed to report and was delinquent in the payment of his fees. He said that one of the reasons he had failed to report was that he lacked transportation.

Here, the evidence established that not only had appellant failed to report, he had also committed a criminal offense and failed to pay his probationary fees. Even without ashowing that appellant's failure to report was willful, there was sufficient evidence to support the revocation of appellant's probation. The State only needed to prove that appellant committed one violation of his probation. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). Appellant committed at least three violations of his probation; therefore, we affirm the revocation of appellant's probation.

Appellant also argues that the trial court erred when it admitted into evidence and relied upon hearsay evidence that was objected to by appellant. Appellant concedes that the Rules of Evidence do not apply in revocation hearings. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). However, he now argues that, by allowing the evidence, the trial court denied him of his right to confront the witnesses. Appellant did not make this argument below. The appellate court has repeatedly held that it will not address arguments, even constitutional arguments, raised for the first time on appeal. Foster v. State, 66 Ark. App. 183, 991 S.W.2d 135 (1999).

Affirmed.

Pittman, C.J., and Bird, J., agree.