Tracy Lynn Lemon v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-486

DIVISION II

CACR05-486

January 11, 2006

TRACY LYNN LEMON AN APPEAL FROM FAULKNER

APPELLANT COUNTY CIRCUIT COURT

[CR01-1588]

V. HON. DAVID L. REYNOLDS, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Tracy Lynn Lemon appeals from a judgment and commitment order confining her to 120 days in county jail. She challenges the sufficiency of the evidence. She also contends that the trial court erred when it admitted into evidence excerpts of instant messages between her daughter and her boyfriend, arguing that the State failed to authenticate the messages, that the excerpts were not the best evidence of the messages, and that the messages were obtained in violation of the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., and the Stored Communications Act, 18 U.S.C. § 2701 et seq. Because appellant violated the terms of her probation when she failed to report to her probation officer, we affirm.

On September 9, 2002, appellant pled guilty to interference with court-ordered custody after she violated an order that prohibited her from contacting her daughters, Jayme and Jordan. Appellant was placed on five years' probation. Among the conditions of that probation were that appellant maintain no contact with her daughters through September 9, 2007. On September 15, 2004, the State filed a motion to revoke her probation, alleging thatappellant violated the no-contact order. The State amended its motion to allege that appellant also absconded supervision and failed to pay fees.

Prior to the court receiving testimony, appellant asked the court to suppress documents purporting to be instant-messaging communications between Jordan and appellant's boyfriend, Charles Bolender. Appellant contended that Jordan's father, Jim Lemon, harvested the documents from Jordan's computer in violation of federal law. The trial court denied the motion, stating that Mr. Lemon owned the computer and had the right to monitor the communications of his children.

Dana Otto, appellant's probation officer, testified that she discussed the conditions of appellant's probation with appellant. Otto also stated that she instructed appellant to keep in contact with her by mail until she was accepted in Florida. Otto stated that she caused appellant's petition to be revoked when she received a phone call from Mr. Lemon who reported that appellant was having contact with his daughters. As far as the allegation of absconding supervision, Otto testified that appellant failed to report and failed to pay supervision fees to Florida probation and parole after September 2004.

Mike Welch of the Conway Police Department testified that he asked Bolender about the contact that he had with Jordan. Bolender told Welch that he came to Arkansas to visit Jordan and did so because he did not believe that justice was being served by not allowing Jordan to have contact with appellant. Bolender stated that he had purchased a cell phone for Jordan and that he talks to Jordan via instant messages on a near daily basis. Welch further testified that Bolender mentioned that he could not stop Jordan from attempting to contact appellant and that appellant would often answer the phone when Jordan called and would have difficulty hanging up the phone.

Mr. Lemon testified that he suspected that Jordan was having contact with appellant the previous summer. He noted that Jordan's attitude changed. Mr. Lemon stated that heobtained a computer-software program and retrieved communications that he perceived to be undesirable and damaging to Jordan. He testified that he purchased the computer and originally placed it in Jordan's room; however, he has since moved the computer to his room and installed a password on it.

At this point in Mr. Lemon's testimony, the State sought to introduce documents purported to be instant-messaging exchanges between Jordan and Bolender. Appellant's counsel requested voir dire. Mr. Lemon testified that Jordan did not purchase the computer with her own money. He noted that Jordan made money the previous summer and that, while she had the means to buy her own computer, she did not buy the computer. Mr. Lemon also stated that he had someone install software and harvest the instant messages from the computer. He testified that he sat next to the person who harvested the information and that the documents were not altered. Appellant sought to exclude the documents because Mr. Lemon did not harvest the information himself and because the documents did not satisfy the best evidence rule. She also renewed her objection that the documents were taken from the computer in violation of federal law. The trial court overruled appellant's objection and allowed the documents into evidence.

Mr. Lemon continued by noting that Bolender never asked for his permission to talk to Jordan and that he did not know that Bolender came to Arkansas to visit Jordan until after the fact. He stated that he contacted Welch and filed the police report when he found out that Bolender visited Jordan, retained an attorney for her, and bought her a cell phone. Jordan testified that she and Mr. Lemon had difficulty getting along and that they fought often. She stated that Mr. Lemon has told her that he would try to talk to his attorney in order to get the no-contact order lifted and that she first had the conversation with him about six or seven months prior to the hearing. Jordan denied having any contact with appellant. On cross-examination, she noted that appellant likes dogs and that, when theylived together, she (appellant) had a dog named "Zo-zo." When asked about references in one instant message where Jordan typed, "Talk whenever you are ready, Zo-zo. Hey, Zo-zo, did you read what I said? You're going to be so proud of me," Jordan testified that she was not talking to the dog. She stated that "Zo-zo" was a password that she would use to let Bolender know it was she and not someone else. On redirect-examination, Jordan testified that she had several conversations with Bolender and that she could not remember all of them. However, she stated that it was very possible that the instant messages were altered.

Bolender testified that he lived in Davey, Florida, and that he had been communicating with Jordan via AOL Instant Messenger. He stated that Jordan first contacted him in June 2004. He also stated that appellant never sanctioned his communication with Jordan and that appellant told him that the communication would probably get her in trouble. Bolender stated that he was concerned about Jordan's safety because she would call him at a pay phone after midnight. He furnished Jordan with a phone because he did not want her leaving the house after midnight to call him. On cross-examination, Bolender denied telling Welch that Tracy sometimes answers the phone when Jordan calls.

Appellant, testifying on her own behalf, denied having any contact with her daughters after the no-contact order. She stated that she was aware Bolender was having contact with Jordan and that she told him that she wanted nothing to do with that communication because it might get her in trouble. She also denied asking Bolender to talk to Jordan.

At the close of the evidence, the trial court stated:

Mr. Schmidt [appellant's counsel], I guess you're at somewhat of a disadvantage because you don't know all there is to know about this case like I do. I've had this case for a number of years. And when this Court entered an order a few months or a couple of years ago, whenever it was, whatever the date on this is, the no-contact order was entered to prevent this kind of thing from happening again.

* * *

I'm going to find that she has violated the no-contact order. It's - it's deja vu. It's the cell phone, the instant messaging. It's conspiracy all over again. I'm going to - and I'm going to find that she failed to report after September.

After the trial court heard additional testimony from Jayme and Jordan regarding sentencing, the court stated:

I basically have two choices. I can impose a full sentence and be done with this case or I can do what they call the shock treatment and keep her on probation. It's been basically four months since she's reported, but I think I can give her up to 120 days without affecting the remainder of her probation. I'm going to sentence her to 120 days in the county jail and she'll remain on probation. The terms and conditions of the order will continue.

Before addressing the merits of the appeal, we note that both appellant and the State erroneously state that the court revoked appellant's probation. Act 1569 of 1999, codified at Ark. Code Ann. § 5-4-301(d), empowers circuit courts to modify original sentences up to the limits set in §§ 5-4-303, 5-4-304, and 5-4-306 without revoking probation. See Moseley v. State, 349 Ark. 589, 80 S.W.3d 325 (2002); Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001). The trial court here acted pursuant to Ark. Code Ann. § 5-4-304(c) (Supp. 2005), which provides in relevant part:

Following a revocation hearing held pursuant to § 5-4-310 and wherein a finding of guilt has been made . . . , the court may add a period of confinement to be served during the period of suspension of imposition of sentence or period of probation.

The period of such confinement is limited to a maximum 120 days in felony cases. Ark. Code Ann. § 5-4-304(d)(1)(A). When acting pursuant to § 5-4-304, the trial court retains the authority to revoke appellant's probation based upon a subsequent violation of the terms of her probation. See Ark. Code Ann. § 5-4-303(f) (Supp. 2005); Moseley v. State, supra.

In a revocation proceeding, the State has the burden of proving by a preponderance of the evidence that appellant violated a condition of her probation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). This court upholds the trial court's findings unless they are clearly against the preponderanceof the evidence. Bradley v. State, supra. While appellant's probation was not revoked, we believe that this standard of review is appropriate when reviewing a decision to impose a period of confinement pursuant to § 5-4-304(c).

Appellant argues that the State failed to prove by a preponderance of the evidence that she inexcusably violated the terms of her probation. She contends that the only issue is whether she violated the no-contact order and that there was no evidence that she did so. However, we affirm the trial court's ruling based on appellant's failure to report from September 2004 until she turned herself in the following January. Otto testified that appellant had not reported since September 2004, and appellant neither denied that she absconded nor presented an excuse.

Because the State needed to prove only one violation of the conditions of appellant's probation, see Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004), we need not review the trial court's finding that appellant violated the no-contact order. Appellant's remaining arguments are unrelated to the failure to appear and are therefore moot.

Affirmed.

Pittman, C.J., and Crabtree, J., agree.