Keithon Earl Bogan v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

KEITHON EARL BOGAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-892

March 8, 2006

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT

[NO. CR-2004-1234-1]

HONORABLE WILLIAM A. STOREY, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

Appellant, Keithon Earl Bogan, pleaded guilty to the offense of manslaughter and was placed on probation for seven years. Less than five months later, the State petitioned to revoke appellant's probation, asserting that he violated the conditions of his probation by, among other violations, committing a third-degree domestic battery. The circuit court revoked appellant's probation and sentenced him to imprisonment for seven years to be followed by a suspended imposition of sentence for three years. On appeal, appellant argues that the court denied him his right to confront witnesses by permitting a probation officer to testify regarding information found in appellant's probation file. We affirm.

At the revocation hearing, probation officer Dan Caley testified, in addition to other matters, that "[a]fter reviewing the file, it's noted that [appellant] hadn't had any employment

reported." Counsel for appellant objected on hearsay grounds and further stated that "we've got this whole new issue of Crawford and the confrontation clause and I don't think [Caley] can testify to anything in the records." The court overruled the objections. At the conclusion of the hearing, the court revoked appellant's probation, stating that appellant violated the conditions of his probation by committing new offenses punishable by imprisonment, by moving without notifying his probation officer, and by failing to pay restitution and court costs.

On appeal, appellant asserts that "the trial court erred in denying appellant Bogan's objection based on his Sixth and Fourteenth Amendment right to confront the witnesses against him to the testimony of Dan Caley that consisted of Mr. Caley repeating statements set forth in a probation file that had been prepared by someone other than Mr. Caley where the person who prepared the file did not testify." We note, however, that at least one of the grounds for revoking appellant's probation, that he committed a new offense punishable by imprisonment, was not established by Caley's testimony, but instead was established by the testimony of the victim of the third-degree domestic battery alleged by the State and by the police officers who investigated the battery. Furthermore, appellant does not challenge the court's finding that he violated his probation by committing an offense punishable by imprisonment. The State needed to prove only one violation of appellant's probation, and because appellant did not challenge on appeal a violation unrelated to his Confrontation Clause argument, any error committed was harmless. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).

Affirmed.

Vaught and Roaf, JJ., agree.