Jaron Ball v. State of Arkansas
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DIVISION III
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
OLLY NEAL, Judge
CACR06-162
OCTOBER 11, 2006
JARON BALL
APPELLANT
AN APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT [CR03-3179 and
CR04-3790]
v.
STATE OF ARKANSAS
APPELLEE
HONORABLE TIMOTHY FOX, JUDGE
AFFIRMED
The Pulaski County Circuit Court found appellant Jaron Ball in violation of his
probation in cases CR 03-3179 and CR 04-3790. According to the State, appellant was in
violation of his probation in case CR 03-3179 due to his failure to report, failure to pay
supervision fees, and failure to complete fifty (50) hours of community service; appellant was
in violation of his probation in case CR 04-3790 due to his failure to report, failure to pay
supervision fees, and failure to pay restitution. As a result, the court revoked appellant’s
probation and sentenced him to two concurrent five-year-terms in the Arkansas Department
of Correction (ADC). The appellant argues on appeal that the trial court erred by revoking
his probation. We affirm.
On January 13, 2004, in case CR 03-3179, appellant pled guilty to the charges of theft
by receiving and fleeing. In the January 16, 2004, judgment and disposition order, appellant
was sentenced to five (5) years probation, ordered to pay $500 in fines plus court cost, and
was also ordered to perform fifty (50) hours of community service within five (5) months.
On June 11, 2004, the State filed a petition to revoke appellant’s probation. The petition
stated that appellant had violated the terms of his probation in that he had not reported to his
probation officer; had failed to pay supervision fees; and had failed to complete fifty hours
of community service. Appellant pled guilty to the probation violation on August 16, 2004.
In the September 2004 judgment and commitment order, appellant was fined $250, was
ordered to pay outstanding fines, fees, and court cost; ordered to complete the fifty hours of
community service within five months; and sentenced to five years probation.
On March 14, 2005, in case CR 04-3790, appellant pled guilty to theft by receiving.
In the March 21, 2005, judgment and commitment order, appellant was sentenced to five
years probation, fined $100 plus court cost, and was ordered to pay $1,759.83 restitution at
the rate of fifty dollars a month beginning April 1.
On August 19, 2005, the State filed petitions to revoke appellant’s probation in cases
CR 03-3179 and CR 04-3790. According to the State, appellant violated the terms of his
probation in CR 03-3179 in that he failed to report (last reported on May 20, 2005); failed
to pay supervision fees ($425 owed); and failed to complete fifty hours of community
service. The State alleged that appellant violated the terms of his probation in CR 04-3790
in that he failed to report (last reported on May 20, 2005); he failed to pay supervision fees
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($425 owed); and he failed to pay restitution ($1,759.83 still owed). In both cases, appellant
had signed documentation indicating he had received the conditions of his release on
probation and that he understood what the conditions meant.
The revocation hearing for both cases took place on October 28, 2005. Darrell
Sanders, appellant’s probation officer, testified he was assigned to be appellant’s probation
officer and that, although appellant received the rules of probation from another probation
officer in March, he went over the rules again with appellant in April and appellant signed
the document at that time. Sanders stated that appellant had not fulfilled his conditions of
probation because he had not paid supervision fees, had not paid restitution, had not
completed his community service, and had not reported since May 20, 2005. Sanders stated
that he attempted to contact appellant by calling appellant’s home and the homes of
appellant’s relatives, and that in March 2005 and July 2005, he had mailed two letters to
appellant at “2804 Peyton Street, Little Rock, AR, 72204,” which had not come back to him.
Sanders further testified that when appellant reported in May, he was given a drug test;
however, appellant did not make any payments and told Sanders that he was not “making
enough money to pay his fees.” According to Sanders, appellant said nothing about his
mother being ill.
Appellant’s mother, Ruby Lee Richardson, testified that appellant was living with her
from May through September; that no mail was received at 2804 Peyton from the probation
office; that she had problems getting her mail; that she had not spoken to the probation
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officer on the telephone until October; that she did not know whether or not appellant had
reported to his probation officer from June to September; that she knew appellant reported
in May because she took him; that she did not take appellant to report in June because she
had surgery; that she was unable to drive until around September; that appellant could not
get a job because he was caring for her while she was down; that appellant could not report
because she could not drive him; that she did not know anyone who could have taken
appellant to report; and that she did not ask anyone else to take appellant to report. She also
stated that she badly needed appellant’s help because she did not have anyone to help her.
Upon hearing the evidence, the trial court granted the State’s petitions and sentenced
appellant to five years in the ADC for each case with the sentences to run concurrent with
each other. This appeal followed.
On appeal, appellant argues that the trial court erred in granting the State’s petitions
to revoke his probation in each of the two cases because the State failed to introduce
substantial evidence that he had inexcusably failed to comply with the terms and conditions
of probation in each case.
A trial court may revoke a defendant’s probation at any time prior to the expiration
of the period of probation if it finds by a preponderance of the evidence that the defendant
has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. §
5-4-309(d) (Supp. 2005). In probation-revocation proceedings, the State has the burden of
proving that appellant violated the terms of his probation, as alleged in the revocation
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petition, by a preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d
826 (1998). This court will not reverse the trial court’s decision to revoke probation unless
it is clearly against the preponderance of the evidence. Gillion v. State, ___Ark. App.___,
___S.W.3d___ (Jan. 11, 2006). Because 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. Turner v. State, ___Ark. App.___, ___S.W.3d___ (Jan.
11, 2006). The State need only show that the appellant committed one violation in order to
sustain a revocation. Gillion, supra. Where the alleged violation of the conditions of
probation is a failure to make payments as ordered, the State has the burden of proving by
a preponderance of the evidence that the failure to pay was inexcusable. Reese v. State, 26
Ark. App. 42, 759 S.W.2d 576 (1988) (emphasis added). Once the State has introduced
evidence of non-payment, the burden of going forward shifts to the defendant to offer some
reasonable excuse for his/her failure to pay. Id.
In the case at hand, the testimony evidenced that appellant had not reported, had failed
to complete community service or to pay his fees and restitution. Once the State had proven
non-payment of fees and restitution the burden of going forward shifted to appellant to offer
some reasonable excuse for his failure to pay, which he was unable to satisfy. Id. Since any
one of these violations was sufficient for the trial court to revoke appellant’s probation, we
affirm.
Affirmed.
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P ITTMAN, C.J., and B IRD, J., agree.
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