Harris v. State ( 2015 )

Cite as 2015 Ark. App. 51ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-130
Opinion Delivered February 4, 2015
ROY MAURICE HARRIS APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2008-151]
V.
HONORABLE RANDY F.
STATE OF ARKANSAS PHILHOURS, JUDGE
APPELLEE
AFFIRMED
BRANDON J. HARRISON, Judge
Roy Harris was sentenced to seven years’ imprisonment after the Crittenden
County Circuit Court found that he had violated the conditions of his probation. On
appeal, Harris argues that the court erred in allowing the violation report prepared by his
probation officer into evidence when the officer was not there to testify. 1 We find no
error and affirm.
In an order entered 22 September 2008, Harris pleaded guilty to possession of a
controlled substance and was sentenced to five years’ probation. The conditions of his
probation required him to pay all fines, court costs, and restitution as provided by the
court’s judgment and disposition order; to not use or possess any alcoholic beverage,
marijuana, or other illegal drug; to submit to drug testing as directed by his probation
1
This case was previously presented as a no-merit appeal. We ordered rebriefing in
Harris v. State, 2014 Ark. App. 5, and the case has now been submitted as an appeal on the
merits.
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Cite as 2015 Ark. App. 51officer; to notify his probation officer and the sheriff of any change of address or
employment; and to procure suitable employment.
In January 2011, the State filed a petition to revoke Harris’s probation, alleging that
he had (1) failed to pay fines, costs, and fees as directed; (2) failed to report to his
probation officer; (3) failed to pay probation fees; (4) failed to notify the sheriff or his
probation officer of his current address and employment; (5) possessed and used marijuana;
(6) failed to report to Drug Assessment as ordered by his probation officer; (7) failed to
work regularly at suitable employment; (8) driven a motor vehicle with a suspended
driver’s license; and (9) failed to appear in district court. At a hearing in April 2011,
Debra Wiseman, an employee of the Crittenden County Sheriff’s Office, testified that
beginning on 22 October 2008, Harris was supposed to pay $795 in fines and costs at a
rate of $50 per month. She testified that she had not received any payments or had any
communication with Harris.
Shareka Montgomery, an employee of the Department of Community
Corrections, testified that she was standing in for Michael German, who was Harris’s
probation officer. The State asked Montgomery about the violation report filed by
German, specifically what it indicated about Harris’s activities while being supervised, at
which point defense counsel objected, arguing that the report was hearsay and that the
defense was unable to “confront him and cross-examine” German about the report. The
court overruled the objection and allowed the report to be entered into evidence.
Harris acknowledged that he had been placed on probation in September 2008 and
testified that he had been reporting to his probation officer at least twice a week until he
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Cite as 2015 Ark. App. 51found a job, at which time it decreased to once a week. He testified that he had been
working at FedEx for the last three weeks and had been taking GED classes. He
explained that he had been through drug classes at the direction of his probation officer
but that he had relapsed and used marijuana, although he had not smoked “in like a
month.” He claimed to be unaware of the $795 in fines and costs that he was required to
pay but admitted that he was aware of the $25 a month probation fee that he had failed to
pay. He also admitted that he been jailed twice for driving on a suspended license. He
acknowledged he had made no payments toward the $795 but thought that he could get it
paid off now that he was working. He stated that he was “just trying to get on the right
track.”
The court found by a preponderance of the evidence that Harris had violated the
conditions of his probation. The court ordered Harris to spend two days in the
Crittenden County Detention Center and deferred further sentencing until 19 August
2011. The next hearing was not held until 4 November 2011, however, at which
German was present and explained that Harris had reported sporadically and had been
“very slow” about completing his community-service requirement. German also testified
that Harris still owed $200 in fees. Harris stated that he was working through a temporary
agency and that he had paid $300 toward his fines and costs. When asked by the court,
German stated that Harris had not “projected effort.” The court expressed concern at
Harris’s failure to pay probation fees and to visit German regularly but decided to once
again postpone sentencing Harris to a regional punishment facility in order to give him a
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Cite as 2015 Ark. App. 51chance to comply. The court sentenced Harris to thirty days in the Crittenden County
Detention Center and set a hearing date for 16 April 2012.
Harris failed to appear at the April 16 hearing and at a hearing scheduled on June
26. On 14 September 2012, Harris appeared before the court and testified that he had
come to court on April 16 but had car trouble while on a lunch break and could not make
it back in time. He explained that by the time he made it back he was told the court had
already issued a warrant so he “just went home.” When asked about the June 26 failure to
appear, he claimed that was the date that he had car trouble and that he had not known
that he was supposed to appear on April 16. The court explained that it had postponed
sentencing to give Harris a “chance to earn [his] way out of the penitentiary” but that he
“absolutely blew that.” The court sentenced Harris to seven years’ imprisonment, and this
appeal followed.
To revoke probation, the circuit court must find by a preponderance of the
evidence that the defendant inexcusably violated a condition of probation. Reynolds v.
State, 2012 Ark. App. 705. The State has the burden of proof but need prove only one
violation. Id. We will not reverse the circuit court’s decision to revoke unless it is clearly
against a preponderance of the evidence. Id. When the determination of a preponderance
of the evidence turns on questions of credibility and weight, we defer to the superior
position of the trial court to decide these matters. Id.Although the rules of evidence, including the hearsay rule, are not strictly
applicable in revocation proceedings, the right to confront witnesses is. Jones v. State, 31
Ark. App. 23, 786 S.W.2d 851 (1990). Arkansas Code Annotated section 16-93-307(c)(1)
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Cite as 2015 Ark. App. 51(Supp. 2013) provides that the defendant has the right to confront and cross-examine
adverse witnesses unless the court specifically finds good cause for not allowing
confrontation. The court “may permit the introduction of any relevant evidence of the
alleged violation, including a letter, affidavit, and other documentary evidence, regardless
of its admissibility under the rules governing the admission of evidence in a criminal trial.”
Ark. Code Ann. § 16-93-307(c)(2).
Harris argues that the court violated his confrontation-clause rights when it allowed
the violation report created by German into evidence. The State counters that any error
in admitting the report was harmless, as the circuit court’s determination that Harris
violated the terms and conditions of his probation was supported by the evidence,
including Harris’s own testimony.
We hold that we need not address Harris’s argument because any error in admitting
the report was harmless. The State is correct that, even assuming that the admission of the
violation report violated the confrontation clause, the error can be harmless. See Brock v.
State, 70 Ark. App. 107, 14 S.W.3d 908 (2000) (explaining that denial of an accused’s
right to confront witnesses may be harmless error because the State need only prove one
violation to establish that appellant violated his suspended sentence, and appellant did not
challenge the sufficiency of the evidence to support the State’s separate allegation that
appellant committed the crime of second-degree battery).
Without considering the violations listed in the report prepared in January 2011,
the evidence showed that Harris failed to pay his fines, costs, and fees as required, and by
Harris’s own admission, he had recently smoked marijuana, which was another violation
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Cite as 2015 Ark. App. 51of his probation. Therefore, we hold that any error in admitting the report was harmless
and affirm the revocation.
Affirmed.
ABRAMSON and GLOVER, JJ., agree.
Laura Avery, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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