APPEAL
FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT
[NO. 16JCR-11-17] HONORABLE PAMELA HONEYCUTT, JUDGE
Terry
Goodwin Jones, for appellant.
Leslie
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
BRANDON J. HARRISON, Judge
Jesse
Lamb appeals the Craighead County Circuit Court's finding
that he violated the conditions of his probation. On appeal,
he argues that the State failed to prove that his failure to
comply with the conditions was willful. We affirm.
In a
criminal information filed 14 January 2011, Lamb was charged
with breaking or entering. He pled guilty, and in April 2012,
he was sentenced to five years' probation. In June 2014,
the State petitioned to revoke Lamb's probation,
asserting that he had violated the conditions of his
probation by using drugs, failing to report residence
changes, and failing to pay fines as ordered. Lamb pled
guilty to violating his probation and in April 2015 was
sentenced to three years' probation.
On 28
February 2018, the State petitioned to revoke Lamb's
probation, contending that he had violated the conditions of
his probation by failing to report, failing to pay
supervision fees, and failing to pay fines as ordered. Due to
a transfer and reassignment of criminal cases within the
Craighead County circuit courts and two continuances
requested by the defense in May and August 2018, the circuit
court did not convene a hearing until 28 November 2018.
Tammy
Hubble, the staff accountant for the Craighead County
Sheriff's Department, testified that Lamb's initial
balance in March 2012 was $506, that a $50 payment had been
made on 2 November 2018, and that Lamb's current balance
was $456. Ryan Jones, Lamb's probation officer, testified
that Lamb was a "frequent absconder" and that he
was not current on his supervision fees. Jones said Lamb
currently owed $362 in supervision fees.
Lamb
testified that he had not made any payments until November
2018 because he had just started receiving disability
benefits for autism. He said he received $756 a month and
planned to make payments of $100 a month going forward. He
also stated that his failure to report to his probation
officer was due to "transportation problems." On
cross-examination, he agreed that he had been on some form of
assistance or disability and had been receiving
survivor's benefits since he was a child but that his
mother had been the payee on the checks and "[s]he
spends all [his] money on alcohol, and [he] had to finally
get the check in [his] name so that [he] could make the
payments."
The
circuit court found that the State had "clearly met its
burden of proof" and that Lamb had not complied with the
conditions of his probation "apparently from the
beginning." Lamb was sentenced to three years'
imprisonment with an additional three years' suspended
imposition of sentence. He has timely appealed.
To
revoke probation, the circuit court must find by a
preponderance of the evidence that the defendant has
inexcusably violated a condition of the probation. Ark. Code
Ann. § 16-93-308(d) (Supp. 2017). To sustain a
revocation, the State need only show that the defendant
committed one violation. Prackett v. State, 2014
Ark.App. 394. Evidence that may not be sufficient to convict
can be sufficient to revoke due to the lower burden of proof
required for revocation. Newborn v. State, 91
Ark.App. 318, 210 S.W.3d 153 (2005). A circuit court's
finding in revocation proceedings will not be reversed on
appeal unless it is clearly against the preponderance of the
evidence. Id. Because the preponderance of the
evidence turns on questions of credibility and weight to be
given testimony, we defer to the superior position of the
circuit court to decide these matters. Mosley v.
State, 2016 Ark.App. 353, 499 S.W.3d 226.
When
the alleged violation is a failure to make payments as
ordered, it is the State's burden to prove that the
failure to pay was inexcusable; once the State has introduced
evidence of nonpayment, the burden of going forward shifts to
the defendant to offer some reasonable excuse for failing to
pay. Reese v. State, 26 Ark.App. 42, 759 S.W.2d 576
(1988). Factors to be considered in determining whether to
revoke a probation or suspension for failure to pay include
the defendant's employment status, earning ability, and
financial resources; the willfulness of the defendant's
failure to pay; and other special circumstances. Ark. Code
Ann. § 5-4-205(f)(3) (Supp. 2017). Once the defendant
claims the inability to pay, the State can then undermine his
credibility, show lack of effort, or show that he is spending
money on something nonessential or illegal. Hanna v.
State, 2009 Ark.App. 809, 372 S.W.3d 375.
On
appeal, Lamb argues that the circuit court failed to
articulate any analysis on whether his failure to pay was
willful and that he had met his burden of offering a
reasonable excuse for nonpayment-the fact that his mother was
the payee on his disability checks. He argues that the State
"failed to show that this excuse for non-payment was not
reasonable." The State counters that Lamb's own
testimony was the only evidence to support his contention
that he could not make payments because his mother was the
payee on his disability checks and bought alcohol with his
money. And the credibility of Lamb's testimony was an
issue for the circuit court to decide. Mosley,
supra.
We hold
that the circuit court's decision to revoke for
nonpayment was not clearly against the preponderance of the
evidence. The court exercised its role as the finder of fact
and made a credibility determination regarding Lamb's
explanation for nonpayment. Because only one ground is needed
...