NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR00-1065

MAY 2, 2001

RAYMOND PATRICK

APPELLANT AN APPEAL FROM THE POPE COUNTY CIRCUIT COURT

v. [CR-97-162]

STATE OF ARKANSAS APPELLEE HONORABLE JOHN S.

PATTERSON, CIRCUIT JUDGE

AFFIRMED

Raymond Patrick appeals from an order of the Pope County Circuit Court revoking his probation and sentencing him to eighteen months in the Arkansas Department of Correction. Appellant's sole point on appeal is that the trial court erred in admitting a laboratory report indicating that a substance recovered from him was a controlled substance because the State did not make available for cross-examination the chemist who tested the substance. We affirm because appellant waived his right to confront and cross-examine the chemist.

On May 20, 1997, appellant pled guilty to possession of drug paraphernalia and possession of a controlled substance and was placed on three years' probation. Among the conditions of appellant's probation were that he live a law-abiding life and that he notcommit any offense punishable by imprisonment. On August 25, 1999, the State filed a petition to revoke appellant's probation alleging that he had failed to live a law-abiding life by possessing a controlled substance with the intent to deliver.

At the hearing on the State's petition to revoke, the State sought to introduce a laboratory report indicating that two plastic bags containing a brown material obtained from appellant during a traffic stop were methamphetamine. Appellant objected, contending that he had not been afforded the opportunity to cross-examine the chemist from the State Crime Laboratory who tested the substances in violation of the Sixth Amendment's Confrontation Clause. The trial court overruled the objection, allowed the report to be admitted into evidence, and subsequently found by a preponderance of the evidence that appellant had violated the terms of his probation.

Appellant correctly asserts that the Sixth Amendment right to confront witnesses generally applies to revocation hearings. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). This right is codified at Ark. Code Ann. § 5-4-310(c)(1) (Repl. 1997), which provides that in revocation hearings, "The defendant shall have the right to confront and cross-examine adverse witnesses unless the court specifically finds good cause for not allowing confrontation."

In this case, appellant sought to confront a chemist employed by the State Crime Laboratory. Arkansas Code Annotated section 12-12-313 (Repl. 1999), provides in relevant part:

(d)(1) All records and reports of an evidence analysis of the State Crime Laboratory shall be received as competent evidence as to the facts in any court or other proceeding when duly attested to by the analyst who performed the analysis.

(2) The defendant shall give at least ten (10) days' notice prior to the proceedings that he requests the presence of the analyst of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.

In the instant case, the record is devoid of any indication that appellant gave the State notice that he wished to cross-examine the chemist who analyzed the substance retrieved from him. Failure to comply with the notice provision of section 12-12-313(d)(2) constitutes a waiver of the confrontation right. Johnson v. State, 303 Ark. 12, 792 S.W.2d 863 (1990). Because appellant waived his right to confront the chemist, we conclude that the trial court did not err in overruling his objection to the admission of the laboratory report and affirm the revocation of his probation.

Affirmed.

Hart and Baker, JJ., agree.