Ryan v. State

2016 Ark. App. 105, 484 S.W.3d 689, 2016 Ark. App. LEXIS 112
CourtCourt of Appeals of Arkansas
DecidedFebruary 17, 2016
DocketCR-15-484
StatusPublished
Cited by5 cases

This text of 2016 Ark. App. 105 (Ryan v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ryan v. State, 2016 Ark. App. 105, 484 S.W.3d 689, 2016 Ark. App. LEXIS 112 (Ark. Ct. App. 2016).

Opinion

LARRY D. VAUGHT, Judge

| Appellant Zack Ryan appeals the. sentencing order entered by the Polk County Circuit Court on February 9, .2015, revoking his probation and sentencing him to ten years’ imprisonment. On appeal he argues that (1) the trial court clearly erred in finding that he had violated a condition of his probation, and (2) the trial court violated his right to confront his accuser. We affirm.

On May 12, 2011, Ryan pled guilty to possession of a schedule VI controlled substance with intent to -deliver, delivery of a schedule III controlled substance, two counts of use of a communication device, and delivery of a schedule IV controlled substance. He received six years’ probation for each count, to run concurrently. On July 12, 2011, Ryan pled guilty to possession of a schedule VI controlled substance and was sentenced to six years’ probation, to run concurrent with his May 12,2011 probation sentence.

|gOn June 11, 2014, the State filed a petition to revoke Ryan’s probation, alleging that he had violated six conditions of probation: failure to lead a law-abiding life, failure to report to his probation officer, failure to be truthful to his probation officer, failure to undergo drug-and-alcohol treatment, failure to refrain from the use or possession of controlled substances, and failure to refrain from the use or possession of alcohol.

A revocation hearing was held in January 20Í5. The only witness at the hearing was Ryan’s initial probation officer, Vici Fenwick. She testified that she performed Ryan’s intake in Polk County in May 2011. She said that "in June 2011, Ryan requested that his probation be transferred to the Malvern office in Hot Spring County and that the request was granted.

■ Fenwick further testified that she filed the violation report against' Ryan in May 2014. She stated that one condition of probation that Ryan allegedly violated was the requirement to lead a law-abiding life and commit no offensé punishable by imprisonment. She explained that a Malvern probation officer contacted her in May 2014, advising that Ryan had been arrested and charged in Hot Spring County -with three counts of producing, directing, or promoting a sexual performance by a child; three counts of distributing, possessing, or viewing of a minor; sexual assault; possession of a schedule IV or V controlled substance; and possession of drug paraphernalia. Fenwick testified that Ryan violated the condition of his probation requiring him to report to his probation officer by failing to attend his substance-abuse program on four occasions. She stated that he violated the condition of probation that required him to be truthful to his probation officer by failing to be truthful to his drug, counselor. Fenwick said that Ryan violated a fourth condition of probation when he failed to attend drug treatment. And she testified that Ryan violated two separate conditions |sof probation by testing positive for drugs on. eleven occasions in 2013-14 and testing ■positive twice for alcohol in. 2013. 1

At the conclusion of the-hearing, the trial court found that Ryan had violated all six of the conditions of probation and entered a sentencing order on February 9, 2015, revoking Ryan’s probation. This appeal followed^ 2

Ryan’s first argument on appeal is a challenge to the sufficiency of the evidence supporting the revocation decision. The State must prove, by a preponderance of the evidence, that Ryan violated a condition of probation. Lambert v. State, 2013 Ark. App. 64, at 3, 426 S.W.3d 478, 480. But it need only prove that a defendant violated one probationary term or condition before a trial court may revoke probation. Id., 426 S.W.3d at 480. We will not reverse the trial court’s findings unless they, are clearly against the preponderance of the evidence. Id., 426 S.W.3d at 480. Evidence that would not support,a criminal conviction in the first instance may be enough to revoke probation or a suspended sentence. Id., 426 S.W.3d at 480. Determining whether a preponderance of the evidence exists turns on questions of credibility and weight to be given to the testimony; so we defer to the trial court’s superior position when it comes to assessing a witness’s believability. Id., 426 S.W.3d at 480.

URyan contends that the trial court clearly erred in concluding that he violated his probationary conditions. He contends that the State’s evidence that he committed new offenses in May 2014 was based solely on the hearsay testimony offered by Fenwick. He argues that the State did not introduce any physical evidence,-police reports, or court documents to support the new charges. He contends that evidence of his failure to report to his substance-abuse program does not establish that he failed to report to his probation officer. Likewise, he argues that failing to be truthful to his drug counselor does not establish that' he failed to be truthful to' his probation officer. Ryan argues that evidence of his failure to attend the substance-abuse program did not establish that he failed to undergo available drug/alcohol treatment as directed by the probation officer. And Ryan counters Fenwick’s testimony about his positive drug-and-alcohol tests by pointing out that she did not know if he had offered any excuses as to why he tested positive for alcohol and drugs and that she did not know if he had been offered rehabilitation that would have helped him.

While the. trial court found that the State proved by a preponderance of the evidence that Ryan had violated six conditions of his probation, only one violation is required. Lambert, 2013 Ark. App. 64, at 3, 426 S.W.3d at 480. Fenwick testified that Ryan tested positive for drugs and alcohol numerous times. The Arkansas Community Correction Adult Probation Officer’s Affidavit, the Arkansas Community Correction Violation Report, the probation-officer supervision-contact notes, and the drug-test results were admitted into evidence without objection and confirm Fenwick’s testimony that Ryan tested positive for drugs and alcohol on numerous occasions. Therefore, based on the- evidence supporting | sthese two violations, we hold that the trial court’s revocation decision was not clearly against the preponderance of the evidence. 3

Ryan next contends that the trial court committed reversible error .by allowing out-of-court statements of a Malvern probation officer into evidence in violation of the Confrontation Clause. Ryan points out that the trial court failed to make a good-cause finding for not allowing confrontation.

Although in a revocation hearing a defendant is not entitled to the full panoply of rights that attend a criminal prosecution, he is entitled to due process. Goforth v. State, 27 Ark. App. 150, 152, 767 S.W.2d 537, 538 (1989). The United States Supreme Court has held that in a revocation proceeding the accused is entitled to “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” Id., 767 S.W.2d at 538 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct.

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Bluebook (online)
2016 Ark. App. 105, 484 S.W.3d 689, 2016 Ark. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ryan-v-state-arkctapp-2016.