DIVISION II

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

WENDELL L. GRIFFEN, JUDGE

CACR00-848

March 21, 2001

RICKY MORRIS AN APPEAL FROM JOHNSON

APPELLANT COUNTY CIRCUIT COURT

[CR97-146]

V. HON. JOHN S. PATTERSON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

After entering a plea of guilty, appellant Ricky Morris was convicted of three counts of violating this State's hot check laws on June 30, 1998. Morris was initially placed on probation for three years. As a result of appellant's failure to report to his probation officer and to pay court costs as directed, his three-year probation term was extended for two additional years. On September 21, 1999, the State filed a petition to revoke appellant's probation, alleging that appellant committed the offense of possession of a controlled substance with intent to deliver. Following a hearing, the trial court revoked appellant's probation and sentenced appellant to five years' imprisonment with an additionalsuspended sentence of five years. He now argues on appeal that there was insufficient evidence to support the court's decision. However, appellant failed to preserve his sufficiency argument. Therefore, we affirm.

During a revocation hearing, the court heard testimony from Greg Donaldson, a patrol supervisor with the Clarksville Police Department. Donaldson testified that on September 9, 1999, he performed a traffic stop on a vehicle in which appellant was a passenger. Because Donaldson had knowledge of prior outstanding warrants for appellant's arrest, Donaldson had the police department check its computer system for outstanding warrants. The operator told Donaldson that appellant had outstanding warrants for his arrest and Donaldson arrested appellant. He then patted appellant down and inventoried his pockets. Donaldson testified that he found two plastic bags of marijuana and two plastic bags of a white powdery substance in appellant's pockets. He stated that these items were submitted to the crime lab for inventory. Donaldson testified that he took appellant to the police department, read appellant his Miranda rights, and tooka statement from him. In this statement, which was introduced as State's Exhibit 2, appellant told Donaldson that he had found the bags of marijuana in his rental home. He further stated that one of the other plastic bags belonged to him, and was Vitamin B. Appellant stated that he did not know what the other bag contained. A laboratory analysis report introduced by the State indicated that the two plastic bags contained methamphetamine and ephedrine.

Appellant testified in his own defense that Donaldson stopped him on September 9, 1999. He stated that Donaldson originally saw him, Jerry Whorton, and three or four other people standing outside of some apartments. Appellant stated that he and Whorton left and went to his rental house where they discovered two bags of marijuana and two bags of a white powdery substance, which appellant put in his pocket. Upon leaving the rental house, appellant testified that he and Whorton came back to town. He testified as follows:

We came back to town, and I stopped right across from the Sheriff's Department across from the Courthouse, tried to call Jerry Dorney. I was trying to get him out to the house, and I was going to give him what I had in my pocket so he would know I was telling the truth. I was not able to get a hold of Mr. Dorney. The answering machine picked up, and I did not leave a message. Then I left.

Appellant admitted that he gave a signed statement to Donaldson. On cross examination, appellant stated that he did not take the drugs to the police department, even though he was aware that the department was open twenty-four hours a day. In rebuttal, the State offered the testimony of Johnson County Sheriff Wesley Kendrick, who testified that the lower office of the Sheriff's office did not have an answering machine and that the jail was open twenty-four hours a day. Kendrick also gave the court Dorney's home phone number. At this point, appellant again took the stand and testified that he had written Dorney's number on a note pad at counsel's table before Kendrick testified. Appellant testified that he phoned Dorney at home because he wanted Dorney to go to his rental house.

The court found that appellant's version of the events was not credible and that appellant had violated a condition of his probation. The court stated that it would order a pre-sentence report, withhold disposition until it received an update on appellant's current status and history, and continue the matter until December 17th.

A pre-sentence report dated January 14, 2000, which was submitted to the court on December 14,1999, was introducedinto evidence during the sentencing hearing. The report noted that appellant violated his probation on November 11, 1999, and December 11, 1999. It also indicated that appellant had an extensive criminal history that stretched over a twenty-six year period. The report noted that appellant was sentenced to the Arkansas Department of Correction on three prior occasions and was previously placed on probation twice. It observed that the State had previously filed two petitions to revoke, and that the court extended appellant's probation for two additional years. Based on the foregoing, the report recommended that the court consider a departure sentence and that it sentence appellant to ten years, the maximum for appellant's original charge. The report noted that the recommendation was based on the fact that appellant was sentenced to ADC three times and placed on probation on at least two prior occasions, yet continued to commit new criminal activity on a regular basis. It noted that at the time of appellant's arrest, appellant had holds from Franklin County, Dardanelle Police Department, Pope County, Conway County, Sebastian County and the Russellville Police Department. Additionally, the report indicated that after appellant was arrested on November 11, 1999, he was arrestedagain on December 11, 1999, for possession of methamphetamine and marijuana. It also noted that appellant tested positive for methamphetamine and marijuana on the date of the pre-sentencing report.

The court sentenced appellant to five years' imprisonment and suspended imposition of sentence for an additional five years. It stated that it was departing from the sentencing guidelines because of the offenses appellant had committed, appellant's action that occurred on his new charges, and the fact that appellant was arrested within one week while he was out on bond for new drug related offenses. The court also ordered that ADC provide appellant with substance abuse treatment. This appeal followed.

The State bears the burden of proving by a preponderance of the evidence that a defendant violated a condition of the suspended sentence in a revocation hearing. See Tipton v. State, 47 Ark. App. 187, 887 S.W.2d 540 (1994). This court will not reverse a trial court's findings in a revocation proceeding, unless the findings are clearly against a preponderance of the evidence. See id.

Rule33.1 of the Arkansas Rules of Criminal Procedure requires an appellant to specifically move for a directedverdict at the close of the state's case, and at the close of all the evidence to preserve a sufficiency-of-the-evidence challenge. In Miner v. State, 342 Ark. 283, 28 S.W.2d 280 (2001), our supreme court discussed whether Rule 33.1 applies to revocation proceedings. The court rejected Miner's argument that a plain reading of the rule, which uses the term "trial," precluded its application to revocation hearings. Instead, the court noted that the commentary to Rule 33.1 indicated its application to jury and bench trials. It concluded that Rule 33.1 requires a defendant in a revocation hearing to specifically move for dismissal in order to preserve a sufficiency-of-the-evidence challenge. When this is not done, an appellant is procedurally barred from raising an insufficiency challenge on appeal. See Miner, supra.

Here, after presenting the testimony of its witnesses, the State rested. Counsel for appellant did not make a specific motion for a directed verdict at the close of the State's case, or at the close of the entire case. Because appellant failed to make a motion for a directed verdict, he is procedurally barred from challenging the sufficiency of the evidence on appeal. Therefore, we do not reach the merits of appellant's claim.

Moreover, even if this court were to consider appellant's sufficiency-of-the-evidence argument, it would fail. Appellant discounts the well settled rule that evidence that may not support a conviction may be sufficient to support a revocation. See Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999). The State only bears the burden of proving that a defendant inexcusably violated a term or condition of the suspended sentence by a preponderance of the evidence. See id. A trial court is not required to find a defendant guilty beyond a reasonable doubt to revoke a suspended sentence, because a defendant in a revocation hearing is not being tried on a criminal charge. See Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977). Therefore, evidence adduced at a revocation proceeding need not have the same quality or degree of proof as evidence adduced at a criminal trial. See id. Thus, this court will uphold the decision of the trial court concerning the revocation of a suspended sentence when the decision is not clearly against the preponderance of the evidence. See Tipton, supra.

In the present case, the State presented uncontroverted evidence that appellant was arrested with two packages of marijuana and two packages of methamphetamine on his person. Although appellant argued that the two bags of marijuana and one bag containing a white substance did not belong to him; the State introduced a statement by appellant that contained his admission that he owned one bag of white substance, which he stated contained vitamin B. The State also presented a laboratory analysis report indicating that both bags of white substance retrieved from appellant contained methamphetamine and ephedrine. Thus, by appellant's own admission, he violated a condition of his probation by committing an offense punishable by imprisonment. Therefore, the trial court's decision that appellant violated his probation was not clearly against the preponderance of the evidence. Accordingly, we affirm.

Affirmed.

Crabtree and Baker, JJ., agree.