JOSHUA C. KING, APPELLANT
STATE OF ARKANSAS, APPELLEE
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NOS. CR13-910,
CR13-940] HONORABLE MARK LINDSAY, JUDGE
Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson
Borkowski, for appellant.
Rutledge, Att'y Gen., by: Evelyn D. Gomez, Ass't
Att'y Gen., for appellee.
Joshua Caleb King appeals from the revocation of his
probation in case nos. CR-2013-910 and CR-2013-940, for which
he received a total of twenty years' imprisonment. On
appeal, King argues that there was insufficient evidence to
support the revocation. We affirm.
January 15, 2014, King entered a negotiated plea of guilty in
case number CR-2013-910 to possession of a controlled
substance (psilocybin) with intent to deliver, possession of
a controlled substance (marijuana) with intent to deliver,
and possession of drug paraphernalia. In case number
CR-2013-940, King pled guilty to the offense of failure to
appear. He was sentenced to a total of 120 months'
probation, and he received a $1000 fine, plus court costs and
fees. He was also ordered to serve nine months in the
Community Corrections Center (CCC) as a condition of his
probation. Other conditions of King's probation required
that he not commit a criminal offense punishable by
imprisonment; that he remain on good behavior; that he not
drink or possess intoxicating or alcoholic beverages; that he
submit to any nonresidential programs deemed necessary by his
supervising officer; that he participate in any
community-based programs (such as Narcotics Anonymous (NA) or
Alcoholics Anonymous (AA)) deemed necessary by his
supervising officer; that he pay his fines, fees, and court
costs in monthly installments of $100 beginning on February
15, 2014; and that he pay his monthly probation fees.
March 31, 2015, the State filed a petition to revoke
King's probation, alleging that he had failed to remain
on good behavior when he committed the new offenses of
domestic battery in the third degree and assault on a
household or family member on or about November 8, 2014. The
State also alleged that King had violated the terms of his
probation by using alcohol, by failing to show up for his
scheduled substance-abuse assessment, by failing to attend AA
or Celebrate Recovery (CR) meetings, and by being in arrears
on his court-ordered financial obligations.
revocation hearing held on April 6, 2015, King's
probation officer, Chrissy Duncan, testified that King had
been released from CCC on May 28, 2014, and that his intake
appointment was on June 2, 2014. She explained the conditions
of his probation to him at that time. Duncan testified that
King subsequently violated the conditions by admitting that
he had used alcohol in September, October, and November 2014.
In addition, although Duncan had ordered King to attend a
substance-abuse assessment in order to address his issues
with alcohol, he failed to attend the assessment that was
scheduled for October 30, 2014. She indicated that King had
reported to the probation office on October 30; however, she
was not in the office, and he left without signing in to see
the substance-abuse counselor. When Duncan questioned King
about missing the assessment, King told her that he had
forgotten about it. Duncan had also instructed King to attend
two AA and CR meetings per week until he had either obtained
full-time employment or undergone the substance-abuse
assessment. She stated that King did not attend the meetings
as ordered because he indicated that he had social anxiety.
Duncan testified that she had rescheduled the substance-abuse
assessment for November 24, 2014, but that King was then
arrested on new charges on November 8, 2014.
Andrew Hudgens with the Washington County Sheriff's
Office testified that he was dispatched to King's
residence on November 8, 2014, for a domestic-disturbance
call. Video and audio from Hudgens's patrol car, as well
as audio from his body microphone from that night, were
played at the hearing over the objection of King. Hudgens
testified that King's father, who had called the police,
had a busted lip and red marks on his face from his
altercation with King. Hudgens stated that King was
uncooperative and "appeared to be under the influence of
something." King admitted to Hudgens that he had been in
a physical fight with his father. Hudgens testified that he
determined from his investigation that King was the primary
aggressor, and King was arrested and charged with
third-degree domestic battery and assault.
Preston, the deputy circuit clerk for Washington County,
testified that King was in arrears on his court-ordered
fines, fees, and costs. She indicated that he had made two
payments of $110 each toward his obligations and that his
last payment was on August 6, 2014. Preston stated that the
total amount past due was $1, 330.
conclusion of the hearing, the circuit court found by a
preponderance of the evidence that King had violated the
terms and conditions of his probation by inexcusably failing
to pay his court-ordered financial obligations, by failing to
attend AA and CR meetings, by not attending his scheduled
substance-abuse assessment, by consuming alcoholic beverages,
and by committing the new offenses of domestic battery in the
third degree and assault on a family or household member. The
court found that all the witnesses who testified for the
State were credible. King was sentenced to twenty years'
imprisonment for his conviction for possession of psilocybin
with intent to deliver, to ten years' imprisonment for
the failure-to-appear and
possession-of-marijuana-with-intent-to-deliver charges, and
to six years' imprisonment on the drug-paraphernalia
charge, with all sentences to be served concurrently. The
amended sentencing order was entered on April 14, 2015, and
King filed a timely notice of appeal from this order.
sole point on appeal, King argues that there was insufficient
evidence for the circuit court to find that he had violated
the terms and conditions of his probation. Pursuant to
Arkansas Code Annotated section 16-93-308(d) (Supp. 2015), a
trial court may revoke a defendant's probation at any
time prior to the expiration of the period of probation if
the court finds by a preponderance of the evidence that the
defendant has inexcusably failed to comply with a term or
condition of his probation. The burden is on the State to
prove a violation of a term or condition by a preponderance
of the evidence. Sanders v. State, 2010 Ark.App.
563. On appeal, the trial court's findings will be upheld
unless they are clearly against the preponderance of the
evidence. Cargill v. State, 2011 Ark.App. 322.
Because a determination of the preponderance of the evidence
turns heavily on questions of credibility and weight to be
given to the testimony, the appellate courts defer to the
trial court's superior position in this regard.
circuit court in this case found that all five violations
that were alleged in the State's petition to revoke were
proved by a preponderance of the evidence, and, on appeal,
King challenges the sufficiency of the evidence supporting
each of these violations. However, only one violation of the
conditions of probation must be proved to support a
revocation. Robinson v. State, 2014 Ark.App. 579,
446 S.W.3d 190.
King's probation officer, testified that she received an
anonymous phone call on September 3, 2014, reporting that
King had been drinking alcohol. Duncan then called King, and
he admitted that he had started drinking again. Furthermore,
during his monthly visits with Duncan, King admitted drinking
alcohol in September, October, and November 2014.
argues that there was insufficient evidence to establish that
he had used alcohol because Duncan did not witness him
drinking. He asserts that she instead relied on the
statements of another person who was not present at trial and
who was not subject to cross-examination, which he contends
violated his right to confront the witnesses against him.
However, Duncan did not rely solely on the statements of a
third party. To the contrary, King admitted to Duncan on
several occasions that he had been consuming alcohol. Despite
his admissions, King also argues that Duncan failed to follow
the guidelines required by Arkansas Community Correction
(ACC) because she did not memorialize his admission in a
document or test him for alcohol use. Because Duncan failed
to follow ACC policy, King contends that this court should
conclude that he did not abuse alcohol in violation of ...