JESSICA D. VANGILDER APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE FAULKNER COUNTY CIRCUIT COURT [N O . 23CR - 17 - 41
] HONORABLE CHARLES E. CLAWSON, JR., JUDGE
Mylissia M. Blankenship, for appellant.
Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, Judge.
Vangilder appeals the Faulkner County Circuit Court's
order revoking her probation. We affirm in part and reverse in
April 12, 2017, Vangilder pled guilty to violating Arkansas
Code Annotated section 5-64-419(b)(1)(A), possession of a
controlled substance; section 5-64-443(a)(2), possession of
drug paraphernalia; and section 5-35-103(b)(4)(A), theft of
property. She was sentenced to probation. On May 10, 2017,
the State filed a revocation petition alleging that Vangilder
violated the terms and conditions of her probation by failing
to report, failing to pay fines and fees, and failing to
abstain from illegal substances.
Faulkner County Circuit Court held a bench trial on June 23,
2017. The State's sole witness was probation officer
Stephanie Turner, who testified that Vangilder failed to
report to the probation office on May 4, and May 9, 2017;
owed $490 in unpaid supervision fees and $1, 345 in unpaid
fines and costs; had not completed her community service
obligations; and had failed an alcohol screen on April 27,
2017. The defense called no witnesses.
conclusion of the bench trial, the court revoked
Vangilder's probation, stating,
CR-17-41, she had two counts. The Theft of Property was
disposed of, I think, in the first case. She did two months
in the County Jail. On the Class D felonies to which she pled
guilty to probation in that case, I'm going to sentence
her to an additional 36 months in the Arkansas Department of
Corrections, and those two sentences will run consecutively.
court's statement references the fact that Vangilder was
originally sentenced to two months in the county jail on the
theft-of-property charge with no probation. The original
order also reflected a jail-time credit of eighty-six days,
meaning that Vangilder had fully served her sentence on that
charge at the time of the original sentencing order.
the court's verbal pronouncement, its subsequently filed
order imposed two thirty-six-month sentences on the two
underlying felonies and twelve months on the
theft-of-property misdemeanor. Vangilder filed a timely
to Arkansas Code Annotated section 16-93-308(d) (Repl. 2017),
a circuit court may revoke a defendant's probation at any
time prior to the expiration of the period of probation if it
finds by a preponderance of the evidence that the defendant
has inexcusably failed to comply with a condition of the
probation. Springs v. State, 2017 Ark.App. 364, at
3, 525 S.W.3d 490, 492. "Thus, to sustain a revocation,
the State need show only that the defendant committed one
violation." Id., 525 S.W.3d at 492. The
State's burden of proof in a revocation proceeding is
less than is required to convict in a criminal trial, and
evidence that is insufficient for a conviction thus may be
sufficient for a revocation. Id., 525 S.W.3d at 492.
When the sufficiency of the evidence is challenged on appeal
from an order of revocation, the circuit court's decision
will not be reversed unless its findings are clearly against
the preponderance of the evidence. McClain v. State,
2016 Ark.App. 205, at 3, 489 S.W.3d 179, 181. Appellate
courts review the sufficiency of the evidence supporting
revocation by viewing the evidence in the light most
favorable to the State. Sisk v. State, 81 Ark.App.
276, 280, 101 S.W.3d 248, 251 (2003). This court defers to
the circuit court's superior position in evaluating the
credibility and weight to be given testimony. Peals v.
State, 2015 Ark.App. 1, at 4, 453 S.W.3d 151, 154.
Finally, only one violation of probation is required to
sustain a revocation. Springs v. State, 2017
Ark.App. 364, at 3, 525 S.W.3d 490, 492.
argues that the State failed to introduce the terms and
conditions of her probation and failed to prove that she was
aware of them. This issue is unpreserved for our review
because Vangilder never made a motion to dismiss or otherwise
raised this argument at trial. While it is true that, when
appealing a revocation, an appellant may challenge the
sufficiency of evidence for the first time on appeal without
having moved for a directed verdict, Cotta v. State,
2013 Ark.App. 117, at 3, we will not address a procedural
challenge unless it was adequately preserved below.
Costes v. State, 103 Ark.App. 171, 175, 287 S.W.3d
639, 643 (2008). "[A]n argument that the State failed to
introduce a copy of the terms and conditions of a [probation]
is a procedural objection that must be raised before the
circuit court." Myers v. State, 2014 Ark.App.
720, at 3, 451 S.W.3d 588, 590. An appellant cannot raise
this procedural argument for the first time on appeal when,
at the revocation hearing, he or she did not object to the
State's failure to introduce the terms and conditions of
his or her probation. Cotta, 2013 Ark.App. 117, at
4. Probation conditions are not an element to be proved at
the revocation hearing. Whitener v. State, 96
Ark.App. 354, 356, 241 S.W.3d 779, 781 (2006). We previously
addressed this specific issue in Cotta, holding that
"Cotta never objected to the State's failure to
introduce the terms and conditions of his suspended sentence
before the trial court. Under Whitener and
Costes, Cotta's argument is not preserved for
appeal." Cotta, 2013 Ark.App. 117, at 4. For
the same reason, we cannot address Vangilder's argument
that the State failed to introduce the terms and conditions
of her probation into evidence.
we note that Turner's testimony was sufficient to
establish the terms and conditions of Vangilder's
probation. Turner testified as to Vangilder's previous
revocations, noted that an administrative officer had gone
over the terms and conditions ...