FROM THE FRANKLIN COUNTY CIRCUIT COURT, NORTHERN DISTRICT
[NO. CR 2011-41A] HONORABLE WILLIAM M. PEARSON, JUDGE
C. Burnett, for appellant.
RAYMOND R. ABRAMSON, Judge
Atteberry appeals from the revocation of his probation.
Pursuant to Anders v. California, 386 U.S. 738
(1967), and Rule 4-3(k) (2015) of the Rules of the Arkansas
Supreme Court and Court of Appeals, Atteberry's counsel
has filed a motion to withdraw alleging that this appeal is
wholly without merit in addition to a brief in which all
adverse rulings are abstracted and discussed. Although
Atteberry was mailed a copy of his attorney's brief and
motion notifying him of his right to present pro se points
for reversal, he did not file any pro se points. The State
elected to not file a brief with our court. We affirm the
revocation and grant counsel's motion to withdraw.
15, 2011, Atteberry pled guilty to possession of a controlled
substance-methamphetamine and possession of drug
paraphernalia, and the Franklin County Circuit Court
sentenced him to sixty months' probation and ordered him
to pay fines, fees, and court costs. The conditions of
Atteberry's probation included that he not commit new
criminal conduct punishable by imprisonment and that he pay
fines, fees, and court costs.
April 16, 2015, the State filed a petition to revoke
Atteberry's probation. The State alleged that he was
arrested and charged with manufacturing methamphetamine; that
he had marijuana growing in his yard; and that he had failed
to make court-ordered payments. The court held a hearing on
the petition on July 2, 2015.
hearing, Mike Hamilton, a member of the fifth judicial
drug-task force, testified that on July 30, 2014, he detained
Sharon Moye, Atteberry's wife, along with Kimberly
Engleman, Lisa Finn, and James Frames outside a pharmacy
because a woman had reported that they appeared to be under
the influence of narcotics. He testified that after he had
detained them, Frames admitted to him that they were buying
pseudoephedrine to cook meth. Accordingly, Hamilton arrested
Engleman testified that Hamilton arrested her on July 30,
2014, after she bought Sudafed from a pharmacy. She stated
that following her arrest, she reported to officers that
Atteberry had told her that he needed the pseudoephedrine and
that he gave her the money to buy the drug from a pharmacy.
She explained that Atteberry wanted the pseudoephedrine to
make methamphetamine and that she hoped to get a half gram of
methamphetamine in consideration for buying the Sudafed. She
testified that she spoke with Atteberry the day of the
hearing and that he had told her not to testify.
testified that Atteberry had asked her to buy Sudafed to make
methamphetamine and had said that he would give her a half
gram of methamphetamine in return. She explained that she
went to the pharmacy along with Engleman, Frames, and Moye.
She stated that the pharmacy sold the Sudafed to Engleman and
Frames; however, it refused to sell her the drug. She noted
that the State promised not to prosecute her if she testified
honestly at the hearing. Finn further testified that
Atteberry and Moye came to her house the night before the
hearing and told her she did not have to testify.
Finn's testimony, the State rested. Atteberry then
testified on his own behalf. He denied asking Engleman or
Finn to buy pseudoephedrine and denied making
methamphetamine. He further denied knowing how to make
methamphetamine. He also denied going to Finn's house the
night before the hearing. He further testified that Engleman
cursed at him immediately prior to the hearing and, in
response, he told her she needed to go home.
court then found that the State had proved by a preponderance
of the evidence that Atteberry had violated a condition of
his probation by manufacturing methamphetamine. The court
"credit[ed] the testimony of the State's
witnesses." The court then sentenced Atteberry to 120
months in the Arkansas Department of Correction. Atteberry
filed a timely notice of appeal from the revocation.
order to revoke suspension or probation, the circuit court
must find by a preponderance of the evidence that the
defendant inexcusably violated a condition of the suspension
or probation. Ark. Code Ann. § 16-93-308(d) (Supp.
2015). The State need show only one violation of probation,
and the circuit court's decision to revoke will not be
reversed unless it is clearly against the preponderance of
the evidence. Phillips v. State, 101 Ark.App. 190,
272 S.W.3d 123 (2008). We defer to the credibility
determinations made by the circuit court. Peel v.
State, 2015 Ark.App. 226.
case, we agree with Atteberry's counsel that there is no
possible merit in an argument that the circuit court's
decision to revoke was in error. The court revoked
Atteberry's probation based on his committing the crime
of manufacturing methamphetamine, and while the evidence is
insufficient to show that Atteberry committed that offense,
the evidence is sufficient to support the offense of
attempting to manufacture methamphetamine. It is settled law
that, although the evidence may be insufficient in a
probation-revocation proceeding to sustain an allegation that
appellant committed a specific offense, revocation will be
sustained if the evidence establishes a lesser-included
offense. See Ark. Code Ann. § 5-1-110(b)(2)
(Repl. 2013); Pratt v. State, 2011 Ark.App. 185
(citing Willis v. State, 76 Ark.App. 81, 62 S.W.3d 3
review of the record shows that there were also two
evidentiary rulings that were adverse to Atteberry's
defense. However, because Atteberry's objections were
made based on the admission of evidence and hearsay, which
are well within the circuit court's discretion, we agree
with Atteberry's counsel that there is no possible ground
for reversal in these adverse evidentiary rulings. Moore
v. State, 362 Ark. 70, 207 S.W.3d 493 (2005). Other than
the underlying ...