Wells v. State ( 2015 )

Cite as 2015 Ark. App. 619ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-15-399
OPINION DELIVERED NOVEMBER 4, 2015
LAMARSHARE WELLS
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[NO. CR-2014-508]
V.
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
In this appeal of her probation revocation, Lamarshare Wells argues that the trial court
erred in finding that she inexcusably failed to report to her probation officer and that she failed
to lead a law-abiding life. We affirm.
Wells pled guilty in the Crittenden County Circuit Court on June 27, 2014, to
aggravated assault, a Class D felony, and fleeing, a Class A misdemeanor. She was sentenced
to thirty-six months’ probation on the aggravated-assault conviction and to a twelve-month
suspended sentence for fleeing. The conditions for both sentences included that she pay all
her fines and costs, that she live a law-abiding life, that she keep the sheriff and her probation
officer notified of any change of address or employment, and that she cooperate with her
probation officer and report to her as directed. On August 11, 2014, the State filed a petition
for revocation of probation, alleging that Wells had violated these conditions, including that
she had committed theft, fleeing, and obstructing governmental operations.
Cite as 2015 Ark. App. 619At the revocation hearing held on January 9, 2015, Amy Peyton, collector of fines and
costs for the Crittenden County Sheriff’s Office, testified that Wells’s judgment of conviction
reflected that she owed $350 in fines and $770 in costs. Wells was to pay thirty-five dollars
per month beginning August 27, 2014. Peyton stated that Wells had made no payment as of
the hearing date.
Probation Officer Jennifer Clements testified that when she received Wells as a
probationer on June 27, 2014, she told Wells what the conditions of her probation were, and
Wells indicated that she understood them. She said that Wells failed to report on July 1,
2014, which was her first appointment, and Clements sent Wells a letter on July 2, 2014, with
a report date for July 14, 2014. Clements testified that Wells failed to report on July 14, 2014.
On July 23, 2014, Clements was notified by Sergeant Kennedy of the West Memphis Police
Department that Wells was in jail for charges related to shoplifting, fleeing police, and giving
police a false name. Clements further testified that, on July 28, 2014, she visited Wells in jail,
but Wells “didn’t have anything to say about her condition there.” Clements stated that
Wells had been incarcerated since her visit to the jail.
Officer Dean Benson with the West Memphis Police Department testified that on July
22, 2014, he was called to the Kroger store on a shoplifting complaint. He said that dispatch
had advised him of the subject’s clothing; as he pulled up to the store, he saw Wells walking
out the front door, matching the description. He stated that when Wells saw him, “she took
off running.” He said that he chased her approximately 125 feet, and when he detained her,
she told him her name was Sierra Ward and that her date of birth was May 7, 1989. Officer
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Cite as 2015 Ark. App. 619Benson testified that he took eight packagess of pork chops and five containers of seasoning,
valued at $70.85, out of her purse. He said that he was halfway through filling out her
booking information when the booking officer told him that Wells, whom the officer
recognized from a prior booking, was giving him the wrong information. The booking
officer printed a prior booking sheet for Benson, who used the information contained on the
prior booking sheet to fill out his booking report. The prior sheet listed Wells’s name as
Lamarshare Wells, born November 4, 1992. He confirmed her identity with a photograph.
Wells told Benson that she had legally changed her name. When he asked her about the date
of birth, she said that she did not want to talk to him anymore. He charged her with theft,
obstructing governmental operations, and fleeing. He did not remember if she had told him
that she had taken the property from Kroger without paying for it.
The trial court granted Wells’s motion for directed verdict as to nonpayment of
probation fees and theft. However, the trial court found that she had inexcusably violated the
terms and conditions of her probation by failing to report to her probation officer as directed,
fleeing from law enforcement, and obstructing governmental operations by providing a false
name to law enforcement. She was sentenced to six years’ imprisonment in the Arkansas
Department of Correction. She filed a timely notice of appeal, and this appeal followed.
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Supp. 2015), the burden
upon the State in a revocation proceeding is to prove by a preponderance of the evidence that
the defendant inexcusably failed to comply with a condition of the probation. The State need
prove only one violation to sustain a revocation of probation. Cochran v. State, 2015 Ark.
3Cite as 2015 Ark. App. 619App. 511. We will not reverse a decision revoking probation unless the trial court’s findings
are clearly against the preponderance of the evidence, and we defer to the credibility
determinations made by the trial court. Peel v. State, 2015 Ark. App. 226.
Wells contends that the trial court’s finding that she inexcusably failed to report to her
probation officer was clearly against the preponderance of the evidence and warrants reversal.
Wells claims that Clements failed to testify whether Wells was ever actually in receipt of any
directions to report on July 1 and July 14, 2014. She argues that, because there was no proof
offered that Wells missed any meetings that she was actually directed to attend, the trial court
erred in finding a violation of the condition that she report as directed.
The State maintains that the revocation is supported by a preponderance of the
evidence. We agree. Before the trial court was Clements’s testimony regarding her
explanation to Wells of the conditions of her probation, Wells’s acknowledgment of her
understanding of those conditions, and Wells’s failure to report on July 1, 2014. Clements
further testified that she had sent Wells a letter on July 2, 2014, setting their next appointment
for July 14, 2014, and that Wells did not report on that date. Wells did not testify at the
hearing, and no justification was offered for her failure to report. Thus, the record is clear that
Wells failed to report on July 1 and 14, 2014, and the State proved by a preponderance of the
evidence that Wells violated this condition of her probation.
As to Wells’s argument that the State did not establish that such failure was inexcusable
because it was unclear whether Wells had received Clements’s letter, the State contends that
the burden of compliance is on probationers rather than probation officers. The State cites
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Cite as 2015 Ark. App. 619Rimmer v. State, 2014 Ark. App. 583, where we held that the trial court committed no error
when the defendant failed to explain why he did not have employment that would have
granted him the necessary funds to travel to the probation office to report; why he could
report by paying for a ride on two occasions but no others; and why he never responded to
efforts of his probation officer to contact him or explain why he was not reporting. Rimmer,
2014 Ark. App. 583, at 3. The State argues that it was Wells’s responsibility to provide an
address where she could be reached or to contact Clements if Wells had questions regarding
her obligation to report. See Rimmer, supra. The record establishes that Wells signed and
agreed to the conditions of probation; that Wells did not report on July 1, 2014, and
Clements sent her a letter; and that it was Wells’s responsibility to provide an address where
she could be reached or to contact Clements if Wells had questions regarding her obligation
to report.
Accordingly, we hold that the trial court’s findings are not clearly against the
preponderance of the evidence, and we affirm. Because only one violation is necessary to
sustain a revocation of probation, we need not address Wells’s remaining arguments.
Affirmed.
HARRISON and GRUBER, JJ., agree.
Tyler Ginn, for appellant.
Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.
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