Ricky L. PEALS, Appellant v. STATE of Arkansas, Appellee
No. CR-14-382
Court of Appeals of Arkansas, DIVISION II.
JANUARY 14, 2015
2015 Ark. App. 1 | 151
No response.
ROBERT J. GLADWIN, Chief Judge
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and
As this is a no-merit appeal, counsel is required to list each ruling adverse to the defendant and to explain why each adverse ruling does not present a meritorious ground for reversal. See Anders, supra;
In compliance with the directive in Anders, supra, and
MR. WILLIAMS: I object to confrontation, Your Honor.
THE COURT: He can say what the name is, overruled.
MR. CALDWELL: My aunt‘s name is Kimberly Garrett.
In his brief, counsel references
Rule 602. Lack of personal knowledge. A witness may not testify to a matter unless evidence is introducеd sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.
Counsel urges that the circuit court was cоrrect in its ruling because the witness had personal knowledge of the name of his aunt.
Additionally, although the rules of evidence are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Stillwell v. State, 2010 Ark. App. 546. In Stillwell, this court cited Goforth v. State, 27 Ark. App. 150, 767 S.W.2d 537 (1989), in which we held that a probationer‘s right to confront witnesses must be weighed against the State‘s reasons asserted for not requiring confrontation. While the circuit court did not specifically perform the balancing test required in Goforth, such error is harmless in this case because appellant‘s probation was properly revoked on another basis. The State need only show thаt the appellant committed one violation in order to sustain a revocation. See Stillwell, supra.
Counsel‘s discussion does not squarely reconcile the “сonfrontation” objection with the ruling by the circuit court. But under either analysis, it was proper for the circuit court to overrule the objection, and there is no basis for a meritorious appeal on this issue.
The second “ruling” that was adverse to appellant is the revocation itself. We hold that there is suffiсient evi-
Where the alleged violation involves the failure to pay ordered amоunts, after the State has introduced evidence of nonpayment, the burden shifts to the probationer to provide a reasonable excuse for thе failure to pay. Scroggins v. State, 2012 Ark. App. 87, 389 S.W.3d 40. It is the probationer‘s obligation to justify his failure to pay, and this shifting of the burden of production provides an opportunity to explain the reasons for nonpayment. Id. If the probationer asserts an inability to pay and provides evidence demonstrating that inability, then the State must demonstratе that the probationer did not make a good-faith effort to pay. Id. Despite the shifting of the burden of production, the State shoulders the ultimate burden of рroving that the probationer‘s failure to pay was inexcusable. Id. If the probationer offers no reasonable explanation for his failure to рay, then it is difficult to find clear error in a circuit court‘s finding of inexcusable failure. Id.
The circuit court found by a preponderance of the evidencе that appellant had inexcusably failed to comply with condition number one by not paying his fines and costs as ordered. The circuit court also found that, based on the testimony of Mr. Caldwell, appellant violated condition number two by committing residential burglary and theft.
Regarding condition one, Amy Peyton, collector of fines at the sheriff‘s office, testified that she received documentation reflecting that appellant, in case CR-08-667, was assessed a fine of $250 and costs of $770, all of which he was to pay at twenty dollars per month. Between January 12, 2009, and June 7, 2013, his last payment, he paid $405 and had a balance owing of $1020. She identified a computer printout and ledger sheet reflecting the amounts testified to. Appellant did not testify regarding this condition.
With respect to cоndition two, Mr. Caldwell testified that on September 23, 2011, he was on his way to work when he got a call that the police were at his apartment. When he got there he found that his door was messed up, “like it had been kicked in.” Items missing were a refrigerator, a television, a DVD player, and some pants and shirts. The next day, when appellant saw him coming out of his apartment, he told Mr. Caldwell that he had taken the items because Mr. Caldwell‘s roommate, Richard Flowers, had taken a cell phone from appellant, which had nothing to do with appellant breaking into the apartment and taking the items and returning everything taken. Mr. Caldwell аlso testified that he did not give appellant permission to enter his property. Appellant did not testify regarding this issue.
Appellant did not testify to and providе a reasonable excuse for not having complied with either of these conditions. Therefore, the findings of the court were
Affirmed; motion granted.
Whiteaker and Hixson, JJ., agree.