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Brown v. State

Court of Appeals of Arkansas, Division II

September 14, 2016

DEMARCUS BROWN APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PHILLIPS COUNTY CIRCUIT COURT [NO. 54CR-12-119] HONORABLE RICHARD L. PROCTOR, JUDGE

          Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.

          LARRY D. VAUGHT, Judge.

         Demarcus Brown appeals the Phillips County Circuit Court's revocation of his probation. On appeal, he argues that the petition for revocation failed to provide notice of the allegations against him, that he was not properly served, and that there was insufficient evidence to support the revocation of his probation. We affirm.

         In 2012, pursuant to a guilty plea to charges of residential burglary and first-degree battery, Brown was sentenced to five years' probation. On December 5, 2014, the State filed a petition to revoke Brown's probation, alleging that Brown had committed arson and first-degree battery; possessed a knife; failed to pay fines, fees, and court costs as ordered; and failed to comply with the instructions of his probation officer. The certificate of service attached to the revocation petition stated that it had been served on Brown's attorney, [1] along with copies of the criminal summons, order setting the revocation hearing, and notice of the hearing.

         At the hearing on January 29, 2015, the court granted the State's motion for a continuance and rescheduled the hearing for February 9, 2015. Brown argued that he had not been personally served with the revocation petition, but he made no motion and obtained no ruling on the issue.

         At the February 9 hearing, Brown again argued that he had not been personally served. The prosecutor stated that his records showed that the documents had been served on Brown's attorney, which Brown did not dispute. Brown stated that service on his attorney was not proper, but neither made any legal arguments nor cited any authority for his statement. The court overruled Brown's objection.

         Princess Burnside, Brown's probation officer, began to testify that Brown had tested positive for drugs numerous times during his probation. Brown's counsel immediately objected that the petition for revocation did not allege anything about failed drug tests. The State responded that the petition alleged that Brown had failed to participate in supervised probation, failed to report, and failed to fully comply with the written and verbal instructions of his probation officer. The court found that was sufficient notice to cover allegations of failed drug tests and overruled the objection.

         Burnside testified that Brown had tested positive for marijuana when he came in for probation intake on August 2, 2012, and that he had tested positive for marijuana three additional times, one of which he also tested positive for cocaine. Burnside also testified that Brown remained delinquent on his supervision fees. She stated that she had checked and confirmed that Brown had neither paid his fees nor worked them off by doing community service. Burnside testified that Brown had failed to report in January, March, April, June, and December of 2013 and February, April, and June of 2014. She also testified that Brown failed to follow instructions by moving without notifying his probation officer or obtaining approval. Burnside testified that, during Brown's intake, she had gone over the conditions of his probation with him. One of the conditions of probation that she had counseled Brown to abide by was the requirement that he not commit any new felonies while on probation.

         Cordarious Willis testified that he knew Brown and that Brown had threatened to kill him and his family. He witnessed Brown fighting with Lorenzo Danaby. He testified that Lorenzo had started the fight and that he saw Brown with a knife and saw Brown stab Lorenzo with it.

         Jennifer Wilson testified that she is the mother of Cordarious Willis. She stated that she knew Demarcus Brown and Lorenzo Danaby because her daughter, Javona Willis, was in relationships with both men. She stated that she had received a call that Cordarious and Brown were fighting and that she saw Brown with a knife but did not see him stab Lorenzo.

         Lorenzo Danaby testified that he had been in a fight with Brown on October 22, 2014, during which Brown stabbed him in the back with a knife. He testified that the stabbing punctured his right lung and his bladder, requiring extensive medical treatment.

         Henry Louis Danaby testified that he is Lorenzo's father and that he knew Demarcus Brown. He stated that on October 11, 2014, someone broke the windows out of his house and burned the house, which also burned a camper and a truck on the property. He testified to the value of each item lost in the fire, the total of which came to $28, 800. He testified that approximately fifteen to twenty minutes before his house was burned, he saw an unfamiliar powder blue bicycle in his yard. He did not know who owned the bike, but the following day he saw Demarcus Brown on the same bike.

         The court found that Brown had violated the conditions of his probation by committing battery and arson, possessing a knife, testing positive for drugs four times, and failing to report eight times. The court revoked Brown's probation and sentenced him to serve twenty-year terms in the Arkansas Department of Correction for each of the ...


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