Robinson v. State , 446 S.W.3d 190 ( 2014 )

Cite as 2014 Ark. App. 579
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-778
Opinion Delivered OCTOBER 29, 2014
TANEKA DORSHELL ROBINSON
APPEAL FROM THE CRITTENDEN
APPELLANT COUNTY CIRCUIT COURT
[NO. CR-2006-293]
V.
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
BILL H. WALMSLEY, Judge
Appellant Taneka Robinson appeals from the Crittenden County Circuit Court’s
revocation of her probation. Robinson argues that the trial court erred in admitting into
evidence a probation officer’s report in violation of her right to confront and cross-examine
witnesses. We affirm.
On May 5, 2006, Robinson pleaded guilty to aggravated assault. She received five
years’ probation and, among other things, was ordered to pay a fine and costs, totaling $1,500.
She was ordered to pay that sum at the rate of $50 per month beginning July 1, 2006. On
June 2, 2009, the State filed a petition to revoke, alleging numerous violations of the terms
and conditions of her probation. An arrest warrant was issued on June 3, 2009, but could not
be served on Robinson until May 25, 2012.
On June 5, 2012, a hearing was held on the State’s petition to revoke. Virginia House
Cite as 2014 Ark. App. 579
with the Crittenden County Sheriff’s Department testified that Robinson had made no
payments whatsoever toward her fine and costs. A ledger sheet was admitted into evidence
without objection.
Mary Marshall, a probation officer, testified that Jim Russell was Robinson’s original
probation officer and that he had prepared a violation report on May 14, 2009. Robinson
objected to its introduction into evidence on the basis that the report was hearsay. The trial
court ruled that the report was admissible pursuant to Ark. R. Evid. 803(8) as a report made
by a public official setting forth his regularly reported activities and matters observed pursuant
to duty. Robinson further objected on the basis that she was not able to confront and cross-
examine Russell as to the contents of the report. The trial court noted Robinson’s objection
but overruled it, again citing the exception to the rule against hearsay.
The violation report indicates that Robinson failed to pay the fine and costs as ordered,
admitted to using and tested positive for controlled substances on numerous occasions, last
reported to her probation officer on July 1, 2008, failed to notify the probation office of her
new address, failed to attend GED classes, failed to complete drug counseling, and failed to
pay probation fees.
Robinson admitted committing many of the violations listed in Russell’s report.
Robinson testified that she was currently working and had held several jobs since getting
“stabilized” in early 2010. She received no child support from either of the fathers of her two
children, but she worked to support them and received food stamps. She added that family
members helped her. She acknowledged that she owed $625 in probation fees and testified
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that she had a money order for that amount with her in court to pay those fees.1 Robinson
stated that she was aware at the time she was placed on probation that she must pay a fine and
costs. She stated that she did not know why she had failed to make any payments. Robinson
then promised the trial court that she could pay the balance of what she owed by September
2012 because she planned to apply her income-tax refund and weekly check toward it. Based
on those assurances, the trial court deferred sentencing until September to give Robinson an
opportunity to pay the balance, but the trial court found that Robinson nevertheless had
violated her probation by failing to report and by using marijuana.
In September, the trial court noted that, while Robinson had not done as promised,
she had made two substantial payments in July and August 2012. Because of these efforts, the
trial court continued the hearing until March 2013 to give Robinson additional time to
comply. The trial court then continued it to May 24, 2013. At the hearing, the judge stated,
You made certain claims to me about what you could do to pay fines and costs and all
that. I mean, just two months, you said, I can pay it all by September, and you did not
do that. I gave you another chance because you had made some effort to do it. I
continued it until September. You have not done what you had promised to do, but
you made an effort, so I continued it not just a couple of months, I continued it six
months. Then, I do not know what happened on March 26th, but we rescheduled it
for today. And so that would be eight months. In that eight month period not one
thing.
Robinson explained that she was no longer working, was forced to move, owed
$1,000 on an electricity bill, was seriously ill, and was caring for her sick child. Robinson
added that it was “hard” because she was a single parent and did not have any help. The trial
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It is not clear from the record whether Robinson paid her probation fees.
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court sentenced Robinson to serve two years in prison.
In order to revoke probation, the trial 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 needs to prove only one violation.
Id. We will not reverse the trial 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.
On appeal, Robinson argues that she was denied the right to confront and cross-
examine Russell as to the contents of his violation report. Robinson argues that the State’s
only excuse for failing to produce Russell as a witness was that he was no longer employed
as a probation officer. Robinson complains that the trial court did not make a specific ruling
on whether the State had demonstrated good cause for Russell’s absence. Robinson maintains
that, once the report was introduced into evidence, she was “forced to testify” and that her
testimony should be disregarded.
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) (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 an alleged violation, including a letter,
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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).
While Robinson raised her confrontation-clause argument below, she failed to develop
that argument and to obtain a specific ruling on the issue. As such, her argument is not
preserved for review. Rodriguez v. State, 372 Ark. 335, 276 S.W.3d 208 (2008). In any event,
the trial court’s determination that Robinson violated the terms and conditions of her
probation by failing to report and by using marijuana was supported by the evidence,
including Robinson’s own testimony.
Moreover, even if the trial court erred in admitting the report, any error was harmless.2
Without considering the violations listed in the report prepared in May 2009, the trial court
found that Robinson had, since that time, failed to pay the balance of her fine and costs as
promised under oath and even after the trial court permitted her an additional eight months
to fulfill her promise. The trial court was not required to believe Robinson’s excuses for not
making a single payment over that span of time. The evidence showed that Robinson was
capable of working; she chose to quit her job, despite her financial obligations; and she had
testified earlier that she received support from family members. There was evidence to support
a conclusion that Robinson made no effort to pay the remainder of what she owed and that
her failure to do so was willful and inexcusable. Because the trial court determines credibility
and there is a lower burden of proof in revocation proceedings, we cannot say that the trial
2
Denial of an accused’s right to confront witnesses may be harmless error. Brock v.
State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).
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court’s decision was clearly against a preponderance of the evidence. For the reasons discussed
herein, we affirm the revocation of Robinson’s probation.
Affirmed.
HARRISON and GRUBER, JJ., agree.
Robert M. “Robby” Golden, for appellant.
Dustin McDaniel, Att’y Gen., by: Pamela A. Rumpz, Ass’t Att’y Gen., for appellee.
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