Torrie Kay Dixon v. State of Arkansas

2019 Ark. App. 412

• Court: Court of Appeals of Arkansas
• Decided: September 25, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 412

Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.26 11:00:21 -05'00' DIVISION III Adobe Acrobat version: No. CR-19-104 2022.001.20169

TORRIE KAY DIXON Opinion Delivered: September 25, 2019

APPELLANT APPEAL FROM THE GREENE COUNTY CIRCUIT COURT V. [NO. 28CR-17-417 ]

HONORABLE BARBARA HALSEY, STATE OF ARKANSAS JUDGE

APPELLEE AFFIRMED

MEREDITH B. SWITZER, Judge

Torrie Dixon was sentenced to three years of supervised probation on July 31, 2017,

after pleading guilty to the offense of possession of drug paraphernalia. On May 16, 2018,

the State filed a petition to revoke, alleging violations of the terms and conditions of her

probation. Following the September 18, 2018 revocation hearing, the circuit court revoked

Dixon’s probation and sentenced her to thirty-six months in a community-corrections

center, followed by a twenty-four-month suspended imposition of sentence. Dixon

challenges the sufficiency of the evidence supporting the revocation because the State “did

not present any evidence regarding the specific terms and conditions of [her] probation, and

the record is unclear as to whether or not the circuit court was aware of the same.” We

affirm.

At the revocation hearing, the State presented evidence that Dixon had not reported

to her supervisor and that she had not paid any fines or costs. She admitted those facts when she testified. Although not formally introduced into evidence, the terms and conditions of

her probation were part of the record before the circuit court. We do not address Dixon’s

argument because it was not properly preserved for our review.

In Myers v. State, 2014 Ark. App. 720, at 3, 451 S.W.3d 588, 590, our court rejected

a sufficiency challenge based on the State’s failure to introduce the terms and conditions of

a suspended sentence, explaining that such a failure constitutes a procedural issue that must

be raised before the circuit court:

Myers couches his argument as a challenge to the sufficiency of the evidence, which is an argument that may be raised for the first time on appeal in an appeal of a revocation in the absence of a motion for directed verdict. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). This court, however, has held that an argument that the State failed to introduce a copy of the terms and conditions of a suspended sentence is a procedural objection that must be raised before the circuit court. Cotta v. State, 2013 Ark. App. 117; Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006). Myers never objected to the State’s failure to introduce the terms and conditions of his suspended sentence. Under Cotta and Whitener, therefore, Myers’s first two arguments are not preserved for appeal.

Here, Dixon did not object below to the State’s failure to introduce the terms and

conditions of her probation or express any concerns about the circuit court’s awareness of

them. Citing Scroggins v. State, 2012 Ark. App. 87, 389 S.W.3d 40, she characterizes her

argument as a sufficiency challenge rather than a procedural issue to avoid being barred from

raising it in this appeal. Her reliance on Scroggins, however, is misplaced. The Myers decision

postdated Scroggins and clarified that the State’s failure to introduce a copy of the terms and

conditions at trial is a procedural issue that must be raised before the circuit court. Dixon

did not raise this procedural issue below, and we will not address an issue on appeal that has

not been properly preserved.

2 Affirmed.

VIRDEN and VAUGHT, JJ., agree.

Terry Goodwin Jones, for appellant.

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