FROM THE FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-18-580],
HONORABLE H.G. FOSTER, JUDGE
Standridge, for appellant.
Rutledge, Atty Gen., by: Jacob H. Jones, Asst Atty Gen.,
T. WHITEAKER, Judge
Appellant David Scroggins appeals an order from the Faulkner
County Circuit Court revoking his probation and sentencing
him to six years in the Arkansas Department of Correction
(ADC). Scroggins raises two arguments for reversal: (1) the
State failed to prove that he inexcusably violated the terms
and conditions of his probation, and (2) the six-year
sentence imposed by the circuit court was disproportionate to
the nature of his violation. We find no error and affirm.
Pursuant to Arkansas Code Annotated section 16-93-308(d)
(Supp. 2015), a circuit court may revoke a defendants
suspended sentence at any time prior to the expiration of the
period of suspended sentence if the court finds by a
preponderance of the evidence that the defendant has
inexcusably failed to comply with a term or condition.
Keyes v. State, 2019 Ark.App. 202, 575 S.W.3d 166.
The burden is on the State to prove a violation of a term or
condition by a preponderance of the evidence. Baker v.
State, 2016 Ark.App. 468, 2016 WL 5799478. On appeal,
the circuit courts findings will be upheld unless they are
clearly against the preponderance of the evidence.
Id. 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 circuit courts superior position in this
regard. Id. Only one violation of the conditions of
probation must be proved to support a revocation.
Id. Evidence that is insufficient for a criminal
conviction may be sufficient for a revocation proceeding
because the burdens of proof are different. Keyes,
supra . Having set out our standard of review,
we now consider the evidence before the circuit court at
Scrogginss revocation hearing.
Scroggins pled guilty in June 2018 to one count of
third-degree domestic battery, a Class D felony, and received
sixty months probation. Approximately two
months later, in August 2018, the State filed a petition to
revoke Scrogginss probation, alleging that he had violated
numerous conditions. The circuit court held a hearing on the
States petition and heard testimony from Scrogginss
probation officer, Audriana Passafiume. According to
Passafiume, Scroggins had not complied with the conditions of
his probation. When Scroggins was sentenced to probation on
June 11, 2018, he was advised to report on July 16. He failed
to report. Passafiume, along with another officer, began to
search for Scroggins. They located him at the home of another
probationer. Scroggins was not cooperative with Passafiume;
he became combative and verbally aggressive and made threats
to Passafiume and the other officer, saying things like
"Ill kill you," "Get off me B, " and
"Get off me big black motherfucker." Although
Passafiume felt that she could have charged Scroggins with
felony terroristic threatening, she did not. Instead, she
administratively imposed a three-day detention due to
Scrogginss failure to report.
his release from detention, Scroggins reported to Passafiume
as directed. At this meeting, Scroggins, who had previously
admitted using marijuana and methamphetamine, apologized for
his conduct and discussed with Passafiume his drug use and
how this affected his behavior. In his postdetention meeting
with Passafiume, Scroggins told Passafiume that he struggled
with addiction, which was preventing him from returning to a
previous job. On the basis of that statement, Passafiume
scheduled Scroggins for a substance-abuse assessment on
August 10 and a return appointment with her on August 15.
Scroggins failed to appear on either date.
again, Passafiume began to search for Scroggins. She
attempted to conduct a home visit on August 17, but he was
not there, so she left a note for Scroggins to report on
August 20. She subsequently received information that
Scroggins no longer lived at that address. She eventually
found Scroggins living with another probationer in violation
of his conditions of probation. In addition, Passafiume
reported that Scroggins never made any of his required
payments, which included $70 in supervision fees and fines of
$1,695. In short, she said, "Hes done nothing that he
was supposed to do." Passafiume was the only witness to
present any evidence to the court. Scroggins did not testify
or offer any evidence at the revocation hearing. At the
conclusion of the hearing, the circuit court revoked
Scrogginss probation and, as noted above, sentenced him to
six years in the ADC.
first argument on appeal, Scroggins contends that the State
failed to prove that he inexcusably violated the terms and
conditions of his probation. Among those conditions were the
requirements that he not violate any local, state, or federal
laws; abstain from illegal drug use; refrain from consorting
with persons who have been convicted of felonies; report to
the probation office as directed; and pay all costs, fees,
fines, and restitution ordered by the court.
the State put on testimony showing that Scroggins engaged in
threatening behavior in violation of state law. Additionally,
the State put on testimony that Scroggins admitted using
drugs, consorted with persons who had been convicted of
felonies, failed to report to his probation officer, and
failed to make payments as ordered, all in violation of his
conditions of probation. While the burden of proof did not
shift, once the State introduced evidence ...