FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. CR-2012-1274] HONORABLE THOMAS E. FOWLER, JUDGE
Goodwin Jones, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
W. GRUBER, Judge
January 28, 2013, Tia Ware was sentenced by the Circuit Court
of Craighead County to sixty months' probation after
pleading guilty to delivery of a controlled substance
(amphetamine). The State later filed a petition and an
amended petition to revoke, alleging that Ware had violated
various conditions of the probation. At a September 28, 2015
revocation hearing, the circuit court revoked Ware's
probation upon finding that she had inexcusably violated
conditions. She was sentenced to twenty-four months'
probation with twelve months to be spent in a Community
Correction Center and was ordered to pay $50 a month toward
previously imposed court costs, fines, and fees until fully
paid. She appeals the resultant sentencing
order, contending that the circuit court erred in revoking
her probation because there was insufficient evidence that
she inexcusably failed to abide by conditions. We affirm.
revocation proceedings, the circuit court must find by a
preponderance of the evidence that the defendant has
inexcusably violated a condition of probation. Ark. Code Ann.
§ 16-93-308(d) (Supp. 2015). Evidence that is
insufficient for a conviction may be sufficient to revoke
probation, which requires a lower burden of proof. Lewis
v. State, 2016 Ark.App. 101, at 2, ___ S.W.3d ___, ___.
A circuit court's finding in revocation proceedings will
not be reversed on appeal unless it is clearly against the
preponderance of the evidence. Id. Because the
preponderance of the evidence turns on questions of
credibility and weight to be given testimony, we defer to the
superior position of the trial court to decide these matters.
circuit court noted that the conditions of Ware's
probation required that she make payments toward her fines,
not use controlled substances, and abide by rules and orders
of the probation office. Speaking from the bench, the court
announced its findings and pronounced sentence:
I noted that in your testimony, you admitted that you missed
a couple of meetings and while I don't like that, that
does not concern me as much as your continued use of THC. I
noted that your attorney did the best that she could to
defend you and your responses to her were to make light of
the drug usage while you were pregnant.
I note that the State has met its burden today by a
preponderance of the evidence and that you have violated the
terms and conditions of your probation and find you guilty of
violation of probation. I have in mind to give you the twelve
months in the Community Correctional Center as a condition of
probation so that you will have the nine months to go into
the program there. This will be a condition of 24 month's
following evidence supports a finding that Ware violated
conditions regarding use of controlled substances and payment
of fees and fines.
Hubble of the Craighead County Sheriff's Office testified
that Ware had made only one $20 payment toward the original
fines and costs of $1231, which had increased to $1361
because of a $10 monthly fee added to unpaid balances. Amanda
Marsh, Ware's probation officer, testified that Ware was
$220 behind on required monthly supervision fees of $35; she
had tested positive for amphetamines, "benzos, "
and THC in January 2015; in May 2015, she had admitted using
THC; she had been positive for opiates in August 2015 and had
given birth that month; she had been put on a waiting list
for a drug program or counseling, but there were no openings;
and she had confessed on the day of the hearing to using THC.
Ware testified that no one had talked to her about
counseling, she had been pregnant with her sixth child when
she used THC, and her positive opiate test was a result of a
postpartum prescription given to her. She did not produce
evidence of the prescription at the hearing.
that the State need show that the defendant committed only
one violation in order to sustain a revocation. Lewis v.
State, supra. Ware argues on appeal that her
failure to comply with conditions of her probation was not
inexcusable, pointing in relevant part to her testimony that
she was not offered rehabilitative services and to her
probation officer's testimony that she was awaiting
services. Ware cites no authority that the State was required
to offer a drug program or counseling. We cannot say that the
circuit court clearly erred in finding by a preponderance of
the evidence that she inexcusably violated conditions of her
probation by using illicit drugs.
Gladwin, C.J., and ...