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Vangilder v. State

Court of Appeals of Arkansas, Division IV

August 29, 2018

JESSICA D. VANGILDER APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE FAULKNER COUNTY CIRCUIT COURT [N O . 23CR - 17 - 41 ] HONORABLE CHARLES E. CLAWSON, JR., JUDGE

          Mylissia M. Blankenship, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

          LARRYD. VAUGHT, Judge.

         Jessica Vangilder appeals the Faulkner County Circuit Court's order revoking her probation.[1] We affirm in part and reverse in part.

         On 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.

          The 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.

         At the 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.

         The 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.

         Despite 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 appeal.

         Pursuant 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.

         Vangilder 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.

         Alternatively, 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 ...


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