Samuel Jerome HENDERSON, Appellant v. STATE of Arkansas, Appellee
No. CR-14-1029
Court of Appeals of Arkansas, DIVISION III.
JUNE 17, 2015
2015 Ark. App. 411
Id. at 754 (quoting People v. Perez, 51 Cal.App.4th 1168, 59 Cal.Rptr.2d 596, 601 (3 Dist. 1996)) (citations and punctuation omitted). After discussing the holdings in Perez and other cases, the Georgia court announced that a wildlife officer may approach a hunter in a state-operated wildlife-management area to determine whether the hunter has the necessary license and permits and to ask him questions about his hunt, regardless of whether the officer has reason to suspect that the hunter has broken any laws. Id. In so ruling, the court also rejected any notion that the officers’ actions were somehow less valid because they did not stop every hunter they saw. Id.
I believe that the Georgia court‘s approach is well reasoned and strikes a fair balance between an individual‘s rights under the Fourth Amendment and a state‘s need to manage and oversee its natural resources. I think a similar approach should be adopted by this court instead of adopting a rule of law that will totally hamstring the game wardens of this state. Therefore, I respectfully dissent.
No response.
Appellant Samuel Jerome Henderson appeals after the Ashley County Circuit Court revoked his probation and sentenced him to serve twenty-four months in a community correction center, followed by a twelve-month suspended imposition of sentence. Appellant‘s attorney has filed a no-merit brief and a motion to withdraw as counsel pursuant to
On February 4, 2009, appellant pleaded guilty to unauthorized use of property to facilitate a crime and was placed on probation for sixty months. On February 22, 2013, the State filed a revocation petition alleging that appellant had violated the terms and conditions of his probation. After a hearing on August 28, 2013, the trial court found that appellant had violated the terms and conditions of his probation. However, in lieu of revoking his probation, the court ordered additional conditions to his probation, including having appellant serve fifteen days in the county jail to be served around work but at least one day for every seven days; prohibiting the use of an automobile for thirty days; drug testing appellant fifteen days afterward and every seven days thereafter until clean and every fifteen days from that point forward; extending appellant‘s probation for an additional thirty-six weeks; and requiring appellant to complete the eighteen-week drug-counseling program at the probation office.
Subsequently, a second revocation petition was filed on March 12, 2014, alleging that appellant violated condition number six of the terms and conditions of his probation by using alcohol and controlled substances. An amended revocation petition filed on June 17, 2014, additionally alleged that appellant violated condition number twenty-three by violating additional conditions as imposed by the court. Specifically, the amended violation report alleged that appellant tested positive for THC on October 15, 2013; November 14, 2013; January 16, 2014; February 13, 2014; and April 17, 2014, and for alcohol on November 14, 2013; January 16, 2014; and February 13, 2014. Furthermore, the report alleged that he served only one day of the fifteen days in jail that were imposed on August 28, 2013.
At the revocation hearing on August 18, 2014, Officer Jacob Hughes testified that he had been supervising appellant during his probation. He explained that appellant tested positive for THC on October 15, 2013; November 14, 2013; January 16, 2014; February 13, 2014; and April 17, 2014, and for alcohol on November 14, 2013; January 16, 2014; and February 13, 2014. Additionally, Officer Hughes testified that despite the court ordering appellant to serve fifteen days in jail as an additional condition of his probation, appel
Appellant did not dispute that he tested positive for THC and alcohol. Instead, he explained that he was stressed and resorted to using marijuana and alcohol even though he knew he was on probation. He admitted that he needed help but did not believe that jail was appropriate for him. Additionally, he testified that since he had been incarcerated awaiting the revocation hearing, he had learned other ways to cope with his stress. On cross-examination, appellant admitted that he started using marijuana when he was nineteen, and he was twenty-six at the time of the hearing.
After all evidence was presented, appellant‘s counsel moved for a directed verdict, which was denied. The trial court found that appellant had violated the terms and conditions of his probation, specifically by continuing to use marijuana and alcohol. He was sentenced to serve twenty-four months in a community correction center, followed by a twelve-month suspended imposition of sentence. This appeal followed.
Appellant‘s counsel discusses several rulings in his brief; however, only some of the rulings were adverse. Therefore, we address only the adverse rulings. First, appellant objected to the relevancy of the questions posed to Officer Hughes regarding the basis for the first revocation petition that was filed in 2013. Additionally, appellant objected to the State‘s failure to authenticate the violation report that was read into the record by Officer Hughes and that was the subject of the 2013 revocation proceeding. The trial court overruled both objections, and these adverse rulings do not provide any meritorious grounds for reversal on appeal. The rules of evidence are not strictly applicable in revocation proceedings, including objections based on hearsay and relevancy. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151; Flemons v. State, 2014 Ark. App. 131, 2014 WL 668205. However, the right to confront witnesses is applicable in revocation proceedings, and the court must weigh a probationer‘s right to confront witnesses against the State‘s reasons for not requiring confrontation. Stillwell v. State, 2010 Ark. App. 546 2010 WL 2612661. Even assuming that there was any error in overruling appellant‘s objections, such error would be harmless here because appellant‘s probation was revoked on another basis, and the State is only required to show that appellant committed one violation in order to sustain a revocation. Id.
Next, the trial court overruled an objection to the State questioning Officer Hughes regarding whether there were any other violations mentioned in the 2013 violation report. However, the adverse ruling became moot after the State withdrew its question and did not elicit any further testimony regarding that subject matter.
Subsequently, appellant objected to the relevancy of the State questioning appellant as to the length of his marijuana usage. Counsel correctly asserts that such information was relevant because it was undisputed that appellant smoked marijuana and that this information pertained to whether appellant could successfully break his habit on his own or needed further judicial intervention.
Finally, the last adverse ruling was the revocation itself after the trial court had denied appellant‘s motion for a directed verdict, which in a bench trial is properly treated as a motion for dismissal. Thornton v. State, 2014 Ark. 157, 433 S.W.3d 216. A motion to dismiss at a bench trial and a motion for a directed verdict at a jury trial are both challenges to the sufficiency of the evidence. See
In this case, the decision to revoke was not clearly against the preponderance of the evidence. Appellant‘s conditions of probation required that he refrain from using alcohol and controlled substances. It was undisputed at the revocation hearing that appellant had used alcohol and marijuana during the term of his probation. Thus, from our review of the record and the brief presented, we find that counsel has complied with the requirements of
Affirmed; motion to withdraw granted.
Abramson and Gruber, JJ., agree.