Bass v. State

2015 Ark. App. 624

• Court: Court of Appeals of Arkansas
• Decided: November 4, 2015
• Docket: CR-15-361
• Status: Published

Opinion

Cite as 2015 Ark. App. 624

ARKANSAS COURT OF APPEALS DIVISION III No. CR-15-361

Opinion Delivered November 4, 2015 TERRELL ALEXANDER BASS APPELLANT APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT V. [NO. CR-2013-503]

STATE OF ARKANSAS HONORABLE JOHN N. APPELLEE FOGLEMAN, JUDGE

AFFIRMED

M. MICHAEL KINARD, Judge

Appellant Terrell Bass appeals from the revocation of his probation. He argues that

he did not inexcusably fail to report to his probation officer as directed. We affirm.

On April 14, 2014, appellant pleaded guilty to aggravated assault and was sentenced

to four years’ probation. On October 21, 2014, the State filed a petition to revoke

appellant’s probation, alleging, among other violations, that appellant had failed to report to

his probation officer as directed. At the revocation hearing, Antonio Banks testified that he

had become appellant’s probation officer on September 17, 2014. Appellant had previously

reported to Officer Green, but he never reported to Officer Banks after coming under his

supervision. Banks testified that he spoke with appellant by telephone on September 15,

2014, and appellant told him that he had not been reporting because his father had died. In

their phone conversation, appellant agreed to report on September 26, but he did not appear

on that date. Thereafter, Banks was unsuccessful in his attempts to reach appellant by phone. Cite as 2015 Ark. App. 624

On October 6, 2014, Banks and Green conducted a home visit at the address in

appellant’s file. Appellant’s mother told them that she had not seen appellant in months and

that she did not know his whereabouts. Banks left an appointment slip for appellant to

report on October 7, but he did not report.

Appellant testified that he reported to Green from April through August. He

acknowledged speaking with Banks on September 15 and setting up an appointment, but he

said that he failed to report after August because his father was dying and he had to take care

of his father’s affairs. On cross-examination, appellant testified that he did report to the

probation office on September 26, but he had the name of his probation officer mixed up

and asked to see a Mr. Brown instead of Banks. At the conclusion of the hearing, the trial

court found that appellant had inexcusably violated the terms and conditions of probation

by failing to report to his probation officer as directed. He was sentenced to four years’

imprisonment.

A trial court may revoke a defendant’s probation if it finds by a preponderance of the

evidence that the defendant has inexcusably failed to comply with a condition of his

probation. Ingram v. State, 2009 Ark. App. 729, 363 S.W.3d 6. The State bears the burden

of proof, but need only prove that the defendant committed one violation of the conditions.

Id. When appealing a revocation, the appellant has the burden of showing that the trial

court’s findings are clearly against the preponderance of the evidence. 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. Id.

2 Cite as 2015 Ark. App. 624

Appellant argues that there was no proof that he inexcusably failed to report to his

probation officer as directed because Banks was not yet his probation officer when the

September 26 appointment was scheduled. Appellant contends that there was no evidence

that he knew Banks was his probation officer on September 26, and he claims that he

attempted to meet with Green, who was his probation officer at the time the appointment

was scheduled. Appellant also argues that there was no proof that he had any notice of the

October 7 appointment.

While appellant offered excuses for his violations, the trial judge was not required to

believe him or excuse his failure to comply with the conditions of his probation. Ingram,

supra. On direct examination, appellant claimed that he missed reporting because he was

dealing with his father’s death. It was not until cross-examination that he claimed he actually

did report to the probation office when scheduled but did not meet with his probation

officer. Even if Banks was not yet his probation officer on the day they spoke, appellant

acknowledged in his testimony that he was directed to report, and Banks was officially his

probation officer by the time of the appointment. The trial court was not required to believe

appellant’s contention that he did report but did not see Banks because he had his name

confused. Furthermore, appellant still did not report after Banks called him, left him

messages, and visited his home. The trial court’s findings are not clearly against the

preponderance of the evidence. Thus, we affirm the revocation of appellant’s probation.

Affirmed.

VIRDEN and HOOFMAN, JJ., agree.

3 Cite as 2015 Ark. App. 624

Tyler Ginn, for appellant.

Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., and Courtnie Holt, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen., for appellee.