Kiah Danner v. State of Arkansas , 2022 Ark. App. 466 ( 2022 )

Cite as 2022 Ark. App. 466ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-257
KIAH DANNER OPINION DELIVERED NOVEMBER 16, 2022
APPELLANT
APPEAL FROM THE HOT SPRING
COUNTY CIRCUIT COURT
V. [NO. 30CR-18-106]
STATE OF ARKANSAS HONORABLE CHRISTOPHER R.
APPELLEE WARTHEN, JUDGE
AFFIRMED
ROBERT J. GLADWIN, Judge
Kiah Danner appeals the Hot Spring County Circuit Court’s revocation of her
probation on six counts of second-degree forgery. On appeal, she contends that the trial
court erred in finding that she willfully violated her probation by (1) testing positive for
marijuana; (2) failing to report; (3) failing to obtain substance-abuse treatment; and (4) failing
to pay restitution, fines, and costs. We affirm.
In order to revoke probation or a suspended imposition of sentence, the trial court
must find by a preponderance of the evidence that the defendant has inexcusably violated a
condition of the probation or suspension. Parker v. State, 2022 Ark. App. 315, at 3. To
sustain a revocation, the State need only show that the defendant committed one violation.
Id. We will not reverse the trial court’s findings unless they are clearly against the
preponderance of the evidence. Id. at 4. “Evidence that would not support a criminal
conviction in the first instance may be enough to revoke probation or a suspended sentence.”
Siddiq v. State, 2016 Ark. App. 422, at 2, 502 S.W.3d 537, 539; Ark. Code Ann. § 16-93-
308(d) (Repl. 2016). Questions of witness credibility and the weight given to testimony are
for the trial court, and this court defers to the trial court’s determinations. Stuebinger v. State,
2022 Ark. App. 217.
On April 25, 2018, Danner was charged with six counts of second-degree forgery. On
June 27, Danner negotiated a guilty plea for eight years’ probation, restitution, fines, fees,
and costs. The conditions of her probation precluded her from committing a criminal
offense punishable by imprisonment; drinking alcohol; using, selling, or possessing any
controlled substance; or leaving the State of Arkansas without permission. The conditions
obligated her to submit to any rehabilitative, medical, counseling, or psychiatric programs
required by her probation officer; participate in Narcotics Anonymous or Alcoholics
Anonymous as required; report to a day-reporting center and subject herself to programs as
required; be truthful to Arkansas Community Corrections officers or staff; pay $35
supervision fee by the tenth day of each month; pay the restitution, costs, and/or fine in the
amount of $825 in regular monthly payments of $100 beginning July 26, 2018; and pay
$2200 (court cost of $150; fines of $1500; DNA fee of $250; public defender fee of $300) in
regular monthly installments beginning July 26. Under “Special Conditions,” Danner was
required to pay all of her fees, fines, or restitution prior to release from supervision, and it
was required that “[r]estitution must be paid first.”
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On October 18, 2021, the State moved to revoke Danner’s probation. An attached
violation report reflects that (1) Danner had tested positive for marijuana on June 28, August
27, and November 29, 2018; February 12, May 13, August 13, September 27, October 28,
and December 31, 2019; October 5 and December 28, 2020; February 2, April 26, June 7,
July 28, and September 29, 2021; (2) Danner failed to report to her probation officer as
instructed on November 20 and 28, 2018, and September 22, 2021; (3) Danner was
sanctioned for her positive drug tests and given a referral to Ouachita Behavioral Health
(“OBH”) on December 31, 2019, and April 26, 2021, and she failed to provide proof of
attendance; (4) on October 28, 2019, and October 5, 2020, Danner was instructed to attend
NA meetings and provide proof of attendance, and she had not; (5) Danner had not made
any restitution payments, and she still owed $825; and (6) Danner was delinquent on her
fines, and as of September 29, 2021, she owed $1990.
At the December 14 revocation hearing, Probation Officer Tiffani Childers testified
to the facts as alleged by the State’s petition, including that Danner tested positive for
marijuana sixteen times before October 2021. She said that as of the hearing date, Danner
owed $440 on restitution, with her last payment being made on November 15, 2021, after
the revocation petition was filed, and that Danner still owed $1960 in fines. Childers said
that Danner forgot about the restitution and had been making some fine payments. On
cross-examination, she testified that she had received a letter from OBH on November 15,
2021, which states that Danner receives from it “consistent” medical, mental, emotional,
and behavioral health treatment. The letter states that Danner completed her assessment
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on July 15, 2021. Childers said that Danner received a medical-marijuana card in October
2021.
Danner testified that she was “positive” for marijuana since 2018 because she had
“some issues with [her] depression, [her] PTSD, and other issues.” She said that her son had
been shot, her mother-in-law had died, and she had to “be in the community” with the
people who killed her mother-in-law. She said that anytime she did not or could not report
due to work, she called her probation officer to let her know ahead of time. She said that
when she tested positive for drugs, she was told to go to OBH for treatment, and she
identified the letter from OBH. She explained that she was delinquent on restitution
because she had assumed the restitution was included with her fines and that her probation
officer was strict about probation fees and fines. Restitution was not brought to her attention
until her office visit on October 6, 2021, and she had paid on it since then and now owes
$400. She apologized for what she did wrong, admitted that she had smoked marijuana
sometimes before she got the medical-marijuana card, and said that she struggled with her
finances.
The trial court ruled that Danner had violated her probation by smoking marijuana
before she was in possession of the medical-marijuana card; failed to report to probation
three different times; failed to provide proof of substance-abuse treatment after being
sanctioned on September 29, 2021; and still owes $1960 in fines and costs. Danner was
sentenced to ten years’ imprisonment, and she filed a timely notice of appeal.
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Danner argues that the trial court erred in each of its findings that she had willfully
violated her probation. She contends that she admitted what she had been told by the
probation officer—that she flunked the drug test. She asserts that the tests had been done
with “cups” that are “drug screens” and “not actual drug tests” and that the “cups” are “quite
often faulty.” She argues that fundamental fairness dictates that the tests should be
confirmed by actual drug testing. She contends, therefore, that her probation should not be
revoked on testimony and without confirmation by scientific testing.
We hold that a positive drug test constitutes sufficient evidence of a violation. See,
e.g., Sivils v. State, 2021 Ark. App. 198, at 5, 623 S.W.3d 138, 141. Regardless, Danner
admitted using marijuana and tried to justify her use by explaining that she used it to treat
her issues with PTSD. She bolstered her defense by producing her medical-marijuana card,
even though this card was obtained after sixteen positive drug tests. Because the State is only
required to prove one violation of the terms and conditions of a defendant’s probation in
order to support a revocation, it is not necessary for us to consider Danner’s other arguments
regarding the trial court’s findings that she violated the terms and conditions of her
probation by failing to report, complete and provide proof of drug treatment, and make
payments on restitution, fines, and fees. See Lanfair v. State, 2013 Ark. App. 51.
Affirmed.
ABRAMSON and MURPHY, JJ., agree.
Gregory Crain, for appellant.
Leslie Rutledge, Att’y Gen., by: Christopher R. Warthen, Ass’t Att’y Gen., for appellee.
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