Carl Gene Morgan v. State of Arkansas

2020 Ark. App. 212, 599 S.W.3d 665

• Court: Court of Appeals of Arkansas
• Decided: April 8, 2020
• Status: Published

Opinion

Reason: I attest to the accuracy and integrity of this document Date: Cite as 2020 Ark. App. 212 2021-06-16 09:57:32 ARKANSAS COURT OF APPEALS Foxit PhantomPDF DIVISION II Version: 9.7.5 No. CR-19-801

Opinion Delivered: April 8, 2020 CARL GENE MORGAN APPELLANT APPEAL FROM THE GREENE V. COUNTY CIRCUIT COURT [NO. 28CR-17-290] STATE OF ARKANSAS APPELLEE HONORABLE BRENT DAVIS, JUDGE

AFFIRMED

RITA W. GRUBER, Chief Judge

Appellant Carl Gene Morgan brings this appeal from the revocation of his probation,

challenging the sufficiency of the evidence. We affirm the court’s decision.

On June 19, 2017, Morgan pleaded guilty to violating Arkansas Code Annotated

section 5-36-103(b)(3)(A) (Supp. 2019), theft of property, a class D felony. He was

sentenced to forty-eight months’ probation. His probation was revoked on November 30,

2017, pursuant to a guilty plea, and the court sentenced him to sixty months’ probation. On

April 16, 2019, the State filed a petition to revoke alleging that Morgan violated the terms

and conditions of his probation by committing the misdemeanor offense of public

intoxication; testing positive for methamphetamine; and failing to pay fines, fees, and costs.

The Greene County Circuit Court held a bench trial on June 27, 2019. Tammy

Case, the circuit clerk secretary for the Greene County Sheriff’s Department, testified that

she collected the filing fees and fines. She explained that Morgan had made only one payment, in September 2018, since his fines and fees were imposed in June 2017. She said

he had made no payments since the payment in September 2018.

Morgan’s probation officer, Andrew Spillman, testified that Morgan had failed to pay

supervision fees on at least five occasions. He also stated that Morgan had tested positive for

methamphetamine on October 1, 2018, and on February 19, 2019. Finally, Mr. Spillman

testified that appellant was charged with public intoxication on April 4, 2019. The arresting

officer also testified, confirming that he had arrested Morgan for public intoxication.

The circuit court revoked his probation, finding that the State had proved all the

allegations contained in the petition for revocation, and sentenced Morgan to forty-eight

months’ imprisonment.

Pursuant to Arkansas Code Annotated section 16-93-308(d) (Repl. 2017), a circuit

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 the probation. Springs v. State, 2017 Ark. App. 364, at

3, 525 S.W.3d 490, 492. The State’s burden of proof in a revocation proceeding is less than

is required to convict in a criminal trial, and evidence that is insufficient for a conviction

may be sufficient for a revocation. Vangilder v. State, 2018 Ark. App. 385, at 3, 555 S.W.3d

413, 415. When the sufficiency of the evidence is challenged on appeal from an order of

revocation, the circuit court’s decision will not be reversed unless its findings are clearly

against the preponderance of the evidence. McClain v. State, 2016 Ark. App. 205, at 3, 489

S.W.3d 179, 181.

2 On appeal, Morgan challenges the sufficiency of the evidence to support the

revocation. He first argues that the State failed to introduce the terms and conditions of his

probation and that it was unclear whether the circuit court was aware of them. This issue is

not preserved for our review because Morgan failed to raise this argument at trial. While an

appellant may challenge the sufficiency of the evidence for the first time on appeal in a

revocation case without having moved for a directed verdict, Cotta v. State, 2013 Ark. App.

117, at 3, we will not address a procedural challenge unless it was adequately preserved

below. Costes, 103 Ark. App. at 175, 287 S.W.3d at 643. “[A]n argument that the State

failed to introduce a copy of the terms and conditions of a [probation] is a procedural

objection that must be raised before the circuit court.” Myers v. State, 2014 Ark. App 720,

at 3, 451 S.W.3d 588, 590. An appellant cannot raise this procedural argument for the first

time on appeal when, at the revocation hearing, he did not object to the State’s failure to

introduce the terms and conditions of his probation. Vangilder, 2018 Ark. App. 385, at 4,

555 S.W.3d at 416.

Morgan also challenges the sufficiency of the evidence supporting the revocation for

failure to pay, contending that while there was testimony that he had failed to make

payments of fines and fees, the State did not show that there had been a willful failure to

pay. Regarding the additional grounds on which his revocation was based, Morgan admits

that the testimony was clear that he had “been arrested on a new charge and had admitted

to the usage of methamphetamine on two occasions,” but he notes that his probation officer

testified that Morgan had not absconded and had continued to report. The State did not

3 allege failure to report, nor did the circuit court base its revocation on a finding of Morgan’s

failure to report, so this information is not relevant to appellant’s revocation.

We turn to the relevant law. The State need only prove one violation of probation

to sustain a revocation. Costes, 103 Ark. App. at 173, 287 S.W.3d at 641. Moreover, when

the circuit court bases its decision on alternate, independent grounds, as it did here, and the

appellant challenges only one of those grounds, we will affirm without addressing the merits

of either. Bedford v. State, 2014 Ark. App. 239, at 2. Here, the court found that the State

had proved all the allegations set forth in the petition. Morgan has challenged only the

ground of his failure to pay fines, arguing that the State did not prove his failure was willful.

Thus, because Morgan does not challenge the court’s finding that he violated his conditions

by using methamphetamine or by being arrested for public intoxication, we must affirm.

Affirmed.

HARRISON and WHITEAKER, JJ., agree.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Y. Yarbrough, Ass’t Att’y Gen., for appellee.