Charleen Elaine Costes v. State of Arkansas
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ARKANSAS COURT OF APPEALS
DIVISIONS III and IV
No. CACR 08-55
Opinion Delivered
CHARLEEN ELAINE COSTES
APPELLANT
SEPTEMBER 24, 2008
V.
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT, [NOS. CR-02-207,
CR-02-700, CR-03-906]
STATE OF ARKANSAS
HONORABLE JAMES O. COX,
JUDGE
APPELLEE
AFFIRMED
JOHN B. ROBBINS, Judge
1.
PROBATION – REVOCATION WAS SUPPORTED BY A PREPONDERANCE OF THE EVIDENCE .– The
trial court’s decision to revoke appellant’s suspended sentence was supported by a
preponderance of the evidence; appellant was alleged to have possessed a small amount of
drugs, which she contended was not a “usable” amount; however, the State Crime Laboratory
chemist weighed and tested the drug, determining it to weigh 3.4 milligrams; while not
much, it was usable and, obviously, was measurable; this was sufficient to support
revocation.
2.
PROBATION – REVOCATION – INSUFFICIENCY ARGUMENT RENDERED MOOT .– Because the trial
court did not base appellant’s revocation on the State’s allegation of possession of drug
paraphernalia, but rather of methamphetamine; appellant’s insufficiency argument relating
to cotton found inside the container holding the methamphetamine was rendered moot.
3.
APPEAL & ERROR – ARGUMENT NOT PRESERVED FOR APPELLATE REVIEW .– Any argument
appellant made about the search and seizure of the contraband from her purse, or the scope
of it, was not preserved for appellate review; there was never a motion to suppress; there was
never an objection on the scope of the consent received; and there was never an objection to
the admission into evidence of the laboratory results on the drugs.
4.
PROBATION – REVOCATION PROCEEDINGS – APPLICATION OF THE RULES OF EVIDENCE .– Even
had appellant presented suppression arguments to the trial court, the Rules of Evidence are
not strictly applicable to revocation proceedings, with certain exceptions not present here,
such that appellant would have had no basis to appeal a suppression issue; for instance, an
exception may exist if the probationer can prove lack of good faith by the law-enforcement
officers; however, appellant did not attempt to demonstrate that the officer acted in bad faith.
Appeal from Sebastian Circuit Court; James O. Cox, Judge; affirmed.
Charles E. Smith, for appellant.
Dustin McDaniel, Att’y Gen., by: Leaann J. Irvin, Ass’t Att’y Gen., for appellee.
Appellant Charleen Elaine Costes was on a suspended sentence for several drug-related
offenses dating back to 2002 when she was accused of violating the terms of her suspension
in 2007 by possessing a small amount of methamphetamine along with drug paraphernalia.
The contraband was found subsequent to a stop of the van she was driving and a search of the
contents of the van, including her purse. After a revocation hearing conducted in October
2007, the trial judge in Sebastian County Circuit Court revoked her suspension on the basis
that she possessed methamphetamine, sentencing her accordingly.
On appeal, appellant first contends that the search and seizure of drugs from a container
in her purse violated her rights to be free from unreasonable searches. Specifically, appellant
contends that the State failed to demonstrate that the consent she gave the officer was
voluntary, and even if it was, the search exceeded the scope of her consent because she
allowed him to search her vehicle, not her purse sitting in the vehicle. As her second point
on appeal, appellant argues that the State failed to ensure that her conditions of suspension
were entered into evidence, such that no revocation could be considered. Finally, appellant
challenges the sufficiency of the State’s proof that she possessed a “usable” amount of drugs
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in her purse or that she possessed drug paraphernalia. We hold that only the sufficiency-ofthe-evidence issue is preserved for review, but that the trial court’s decision to revoke is
supported by a preponderance of the evidence. Therefore, we affirm.
Following our supreme court's ruling in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370
(2001), the requirements of Rule 33.1 of the Arkansas Rules of Criminal Procedure regarding
motions for dismissal and directed verdicts were no longer applicable to revocation hearings.
As a result, an appellant need not move for dismissal of a revocation petition in order to
challenge the sufficiency issue on appeal. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370
(2001); Brown v. State, 85 Ark. App. 382, 155 S.W.3d 22 (2004).
Probation may be revoked upon a finding by a preponderance of the evidence that the
defendant has inexcusably failed to comply with a condition of the probation. Wade v. State,
64 Ark. App. 108, 983 S.W.2d 147 (1998). The trial court’s findings will be upheld unless
they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245,
45 S.W.3d 869 (2001). 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). In a challenge to the
sufficiency of the evidence, the evidence is viewed in the light most favorable to the State.
See Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Because the burdens are different,
evidence insufficient for a conviction may be sufficient to support a revocation. See Jones v.
State, 355 Ark. 630, 144 S.W.3d 254 (2004).
[1] Here, the allegation was that appellant possessed a small amount of drugs, which
she contends is not a “usable” amount. There is no provision in our Controlled Substances
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Act, codified at Ark. Code Ann. § 5-64-101 et seq., mandating that one must possess a usable
amount of methamphetamine to support a conviction for possession. Nevertheless, our
supreme court adopted a usable-amount criteria in Harbison v. State, 302 Ark. 315, 790
S.W.2d 146 (1990). Possession of a trace amount or residue which cannot be used and which
the accused may not even know is on his person or within his control does not suffice.
Harbison v. State, 302 Ark. 315, 322, 790 S.W.2d 146, 151 (1990) (cited with approval in
Porter v. State, 99 Ark. App. 137, 257 S.W.3d 919 (2007)). Here, the State Crime Laboratory
chemist weighed and tested the drug, determining it to weigh 4.3 milligrams. While not
much, it was usable and, obviously, was measurable. See also Sinks v. State, 44 Ark. App. 1,
864 S.W.2d 879 (1993) (holding that 0.024 grams of cocaine was usable because the cocaine
was capable of quantitative analysis, could be seen with a naked eye, was tangible and could
be picked up, and was a clearly measurable amount that satisfied the requirements of Harbison).
This is sufficient to support revocation.
[2] Appellant also argues that there was insufficient evidence to revoke on the
possession-of-paraphernalia allegation, which apparently related to the cotton found inside the
container holding the methamphetamine.
The arresting officer testified that cotton is
commonly used as a filtering device by intravenous drug users. The trial court did not base
the revocation on the State’s allegation of possession of drug paraphernalia, but rather
possession of methamphetamine, rendering this argument moot.
[3] Appellant attempts on appeal to challenge the search and seizure of the contraband
from her purse. The testimony on this issue showed that after appellant’s vehicle was pulled
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over, she freely gave consent to search it and at no time limited the scope of her consent.
Inside, she left her purse, which contained the small amount of methamphetamine and cotton.
Any argument about this search, or the scope of it, is not preserved for appellate review.
There was never a motion to suppress; there was never an objection on the scope of the
consent received; there was never an objection to the admission into evidence of the
laboratory results on the drugs. One who does not object to the introduction of evidence at
the first opportunity waives such an argument on appeal. Marts II v. State, 332 Ark. 628, 968
S.W.2d 41 (1998).
[4] Even had she presented suppression arguments to the trial court, the Rules of
Evidence are not strictly applicable to revocation proceedings, with certain exceptions not
present here, such that she would have no basis to appeal a suppression issue. See Deere v.
State, 59 Ark. App. 174, 954 S.W.2d 943 (1997). For instance, an exception may exist if the
probationer can prove a lack of good faith by the law-enforcement officers. Cook v. State, 59
Ark. App. 24, 952 S.W.2d 677 (1997). However, appellant has not attempted to demonstrate
that the officer acted in bad faith. In sum, appellant failed to preserve any issue with respect
to the admission of the evidence of drugs and paraphernalia found in her vehicle.
Appellant inserts a comment in her argument that the State failed to enter into
evidence the conditions of her suspension upon which to establish any violation. The State
correctly notes that this argument is raised for the first time on appeal and is consequently
not preserved for review. See Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006).
Whether there is proof that a probationer received written conditions of probation is a
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procedural matter, and not one of the sufficiency of the evidence, because the purpose of
providing the conditions in writing is to prevent confusion on the probationer’s part. See
Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). Moreover, appellant concedes in
her brief to us that “possession of methamphetamine and possession of drug paraphernalia
would, if supported by sufficient evidence, constitute violations of her conditions of suspended
sentence.” Furthermore, the record contains the file-marked written conditions to which
appellant agreed in order to receive a suspended sentence.
The dissenting judge in this case believes that our court should overrule Whitener,
supra, for the same reasons stated in his dissent to Whitener. That case was decided by a fiveto-one majority. Appellant has not asked that we revisit that precedent nor does she cite that
case in her brief, instead focusing her argument on the sufficiency of the proof, as have we.
We adhere to the established case law.
For the foregoing reasons, we affirm the revocation of appellant’s suspended sentence.
H ART, V AUGHT, H EFFLEY, and B AKER, JJ., agree.
G RIFFEN, J., dissents.
W ENDELL L. G RIFFEN, Judge, dissenting. In Whitener v. State, 96 Ark. App. 354, 241
S.W.3d 779 (2006), this court acknowledged the well-settled rule that no motion or objection
is necessary to preserve a challenge in a revocation proceeding. Nonetheless, it held that the
failure to introduce the terms and conditions of a suspended sentence must be brought to the
attention of the trial court; otherwise, any objection for the failure to do so is waived. I
disagreed with the majority and wrote a dissenting opinion. I still believe, based on both the
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reasoning espoused in my dissenting opinion and precedent since that decision, that Whitener
was erroneously decided and should be overruled.
In holding that challenges such as the one in this case must be raised at trial to be
preserved, the Whitener majority relied on Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900
(2004). There, the appellant argued that his revocation should have been reversed for the
State’s failure to present proof that he received the written list of probation conditions. The
appellant acknowledged that he was bringing this argument for the first time on appeal but
argued that he was challenging the sufficiency of the evidence to revoke the probation, which
was open for review. This court disagreed, stating that the requirement to give the
probationer a written list of the probation conditions was a procedural issue and was waived
by the appellant’s failure to raise it to the trial court. Nelson, however, is distinguishable from
both Whitener and the instant case. Appellant is arguing that the trial court did not know what
the probation conditions were and, thus, it could not know whether appellant’s actions
violated those conditions. This is different from a claim that she did not know what the terms
and conditions of her probation were.
Rather than compounding the error in Whitener, we should hold that the failure of the
State to prove an actual term or condition of a probationary or suspended sentence is fatal to
its case. In Harris v. State, 98 Ark. App. 264, 254 S.W.3d 789 (2007), the trial court found that
the appellant violated the terms and conditions of his probation when he failed to demonstrate
good conduct. This court first rejected the State’s argument that the appellant waived his
challenge by failing to ask which criminal offense the court found that he committed. We
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then rejected the State’s argument that the trial court could have revoked the appellant’s
probation by finding that he committed disorderly conduct, stating that the circuit court may
not revoke a probation on a basis not alleged in the State’s petition (citing Hill v. State, 65
Ark. App. 131, 985 S.W.2d 342 (1999)). We ultimately reversed the revocation, stating that
the terms and conditions of appellant’s probation did not contain a good-behavior
requirement:
While we recognize that the State need only prove that appellant violated one
condition of his probation in order to support revocation, and that evidence that is
insufficient for a criminal conviction may be sufficient for the revocation of probation
or suspended sentence, a trial court must find that appellant violated a written condition of
his suspension.
Harris, 98 Ark. App. at 270, 254 S.W.3d at 793-94 (citations omitted, emphasis in original).
Harris is in line with Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), a case I relied
upon in my Whitener dissent. There, the trial court revoked the appellant’s probation after
finding that he committed the crimes of battery and aggravated assault. The supreme court
reversed because the appellant’s probation was not conditioned upon good behavior, despite
a provision in the Arkansas Code requiring that probations be conditioned upon good
behavior. The court stated:
[C]ourts have no power to imply and subsequently revoke conditions which were not
expressly communicated in writing to a defendant as a condition of his suspended
sentence. This result not only comports with any due process requirements owed to
a defendant upon the imposition of a suspended sentence but may serve to deter
criminal conduct which a defendant might otherwise commit but for a full
appreciation of the extent of his jeopardy.
Id. at 191, 594 S.W.2d at 853.
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In a criminal prosecution, due process requires the State to prove every element of the
crime charged beyond a reasonable doubt. See, e.g., Anderson v. State, 353 Ark. 384, 108
S.W.3d 592 (2003) (citing Mullaney v. Wilbur, 421 U.S. 684 (1975)). Similarly, the State must
prove every element of a probation violation by the preponderance of the evidence. See, e.g.,
Harris, supra. Under Ross and Harris, a court can only base a revocation on a violation of an
actual term or condition of a probation or suspended sentence. It necessarily follows that the
proof of a violation includes evidence of the actual terms and conditions of the probation or
suspended sentence. Without such proof, the State’s evidence is insufficient to support the
revocation. Because no motion is necessary to preserve a sufficiency challenge in a revocation
proceeding, see, e.g., Harris, supra, the failure to object on this ground at trial should not
constitute waiver of the issue on appeal.
I hold to my belief that Whitener was incorrectly decided. This court cannot allow
revocation proceedings to become routine to the point that basic due process principles are
ignored. In all cases, due process requires the State to maintain its burden of proving all of the
elements of a crime or of a probation violation, and we are duty bound by justice to reverse
when failure to do so happens. This is such a case. Therefore, I respectfully dissent from the
result reached by the majority.
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