ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

BARRON B. LEWIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1293

JUNE 13, 2001

APPEAL FROM THE CRITTENDEN

COUNTY CIRCUIT COURT

[NO. CR-99-344]

HONORABLE DAVID N. LASER,

CIRCUIT JUDGE

AFFIRMED

Appellant Barron B. Lewis appeals the revocation of his probation by the Crittenden County Circuit Court. He argues that the decision is clearly against the preponderance of the evidence. We affirm.

In revocation proceedings, the burden is on the State to prove by a preponderance of the evidence that the defendant has violated a condition of his probation. Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation of probation or a suspended sentence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). On appeal, an appellate court will not reverse the trial court's decision unless it is clearly against the preponderance of the evidence. Id. However, before we can conduct a review of the evidence, the issue must bepreserved for

appellate review. Ark. R. Crim. P. 33.1(c) (2000). In this case, we cannot reach the merits due to this procedural deficiency.

Appellant was placed on a three-year probation term on November 8, 1999, for having committed possession of a controlled substance with the intent to deliver. He agreed to the typical conditions of probation, including not violating any law, obtaining suitable employment, and paying a fine. The State alleged various violations in a petition to revoke filed on July 10, 2000, including appellant's failure to pay fines and costs, failure to obtain suitable employment, possession of a controlled substance, and commission of the offense of criminal impersonation. The hearing on this petition was conducted on July 26, 2000.

Testimony was taken from a West Memphis police officer who stated that authorities had received reports of drug sales on or around the premises of a specific McDonald's restaurant. The person selling drugs was described as a black male wearing a white t-shirt and having a white towel wrapped about his neck. Officers made contact with a person fitting that description about one hundred feet from the McDonald's restaurant. The person, later identified as appellant, stated that his name was Barron Boyd. Another officer on the scene knew appellant and told the other officers that this name was false. Based upon this false identity, the officers arrested appellant and conducted a search of his person, which revealed a small, white plastic box resembling a fuse box that had white residue in it that field-tested positive for cocaine. Also in his pocket was a Super 8 Motel room key. The officers checked the motel room and found a seventeen-year-old female inside, which ledto charges of contributing to the delinquency of a minor, endangering the welfare of a minor, and promoting prostitution.

Ashley Moore, an employee of the sheriff's department, testified that her function was to perform the bookkeeping tasks regarding monetary sanctions, and she verified that there was no record of any payment on appellant's fine of $1425. The probationary agreement reflected that appellant agreed to pay $50 monthly toward this fine.

Appellant testified that he was unemployed, that he had no real residence, and that he was unable to pay the fines and costs, though he admitted paying $35 for a motel room for the seventeen-year-old girl, but only out of a sense of duty to help a stranger and for no other purpose. Appellant denied having given a false name to the police at any time, because several of the police officers knew him. Appellant's mother testified that the name he allegedly gave could be explained because it was not until after appellant's father returned from the Vietnam War that they married and had his given name changed to Lewis, instead of her maiden name, Boyd.

Appellant's counsel moved very generally to dismiss at the conclusion of the State's case and did not renew the motion at the close of the evidence. The trial judge revoked appellant's probation and sentenced appellant to five years of imprisonment to be followed by five years of suspended sentence. Appellant filed a notice of appeal from these proceedings.

Arkansas Rule of Criminal Procedure 33.1 (2000) requires a defendant in non-jury trials to make a specific motion for directed verdict at the close of all the evidence. The Rulefurther provides that if "the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence." Rule 33.1(b). This rule applies in revocation proceedings. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). Here, appellant moved for a directed verdict only at the close of the State's case. Appellant failed to renew his motion at the close of all the evidence. Consequently, the sufficiency of the evidence to support revocation of appellant's probation was not preserved for our review. See Trammell v. State, 70 Ark. App. 210, 16 S.W.3d 564 (2000).

Furthermore, even if we were able to reach the merits of appellant's argument on appeal, we would affirm because the trial court's decision was not clearly against the preponderance of the evidence. That appellant was in possession of a container having drug residue or that appellant inexcusably failed to make payments toward his fines and costs would in either case be enough to support revocation because the State need only prove one violation to support a revocation.

Affirmed.

Griffen and Crabtree, JJ., agree.