ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

QUABINA RASHEEN PENSON,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-1300

JULY 5, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR91-832,

HON. DAVID BURNETT, JUDGE

AFFIRMED

In this revocation case, the State alleged that Quabina Rasheen Penson had violated the terms of his suspended sentence by delivering cocaine on two occasions, by possessing controlled substances, and by possessing controlled substances with intent to deliver. At the revocation hearing Officer James Rusterholz of the Crittenden County Sheriff's Department testified that a confidential informant told him that she had purchased narcotics from Penson. Audio tapes of the purported exchange between the informant and Penson were introduced into evidence. At the conclusion of the hearing, the trial court granted the petition to revoke. Penson was sentenced to ten years' imprisonment and eight years' suspended sentence.

Penson now raises one point of appeal, contending that the trial court erred in permitting hearsay evidence that violated the Confrontation and Due Process Clauses of the United States Constitution. He argues in his brief that both the admission of Officer

Rusterholz's identification testimony and the audio tapes violated the Confrontation Clause. The State responds that Penson's argument regarding the identification testimony is procedurally barred, and that the argument regarding the tapes is procedurally barred and lacks merit, or, in the alternative, that the admission of both the testimony and the tapes was harmless error. We find that the confrontation argument regarding identification testimony is procedurally barred because it was not raised below, and we find that the admission of the tapes did not violate the Confrontation Clause. Therefore, we affirm.

The only witness at the hearing was Officer Rusterholz, who testified regarding the purchase of cocaine by a female informant on June 1, 1999. Rusterholz testified that he searched the informant and that, after finding no cash or drugs, he gave her fifty dollars to purchase crack cocaine. He stated that he wired her with a body mike, dropped her off at a building near Penson's apartment, kept her under surveillance, and saw her approach Penson's apartment. He further testified that she entered the apartment, that he heard and recorded the conversation as she made the purchase, that he saw her leave the apartment seven minutes after she had entered the building, and that she gave him four off-whitish rocks. The rocks tested "positive" for cocaine in a field test, and Rusterholz submitted them to the state crime lab.

Penson objected at trial to the identification of Penson's voice, arguing that Rusterholz's testimony that he had previously heard Penson's voice on a recording was insufficient foundation to establish the officer's actual or firsthand knowledge of Penson's voice. The objection was overruled. Rusterholz then testified that he was able to identifythe two participants in the conversation, and that his basis for identifying Penson's voice was based upon listening to the transmission from the confidential informant's microphone and transmitter. He testified that he had seen Penson around the apartment, that Penson was the person who lived there at the time of the transaction, that the informant told Rusterholz that the voice was Penson's, and that prior transmissions when Rusterholz could identify the voice came from the same apartment, which was Penson's apartment.

The abstract reveals that the following exchange then occurred:

Penson next objected "to the playing of the tape due to Penson's right to confront the informant and no right of cross examination." This objection, too, was overruled. Rusterholz stated that the tape had been made while Penson's residence was under surveillance, and that the informant had recorded the transaction in which she bought the cocaine. Penson then objected, "[O]n this tape, I'd also make my objection about confrontation, right to cross examine the witness." The objection was overruled.

Rusterholz testified during the playing of the tape, "Right there Mr. Penson is asking for change for a twenty to the other people in the room." Penson objected, stating, "Yourhonor, I'm not satisfied of his ability to identify Mr. Penson with all the background noise and, if his basis for knowledge of the voice is on this tape, the other tapes before that, I think that draws into question his ability to identify." Again, the trial court overruled the objection.

On cross-examination, Rusterholz stated that the first time he met Penson was when he was arrested, and that the only contact with Penson for purposes of voice recognition was listening to other audio tapes. He also testified that he did not know how many people were in the apartment on the date in question, that there were two male voices on the tapes, and that he did not know the identity of the other male voice.

The State rested and Penson moved for a directed verdict on three bases. He argued first that the State's only identification of Penson was through the testimony of the officer, whose only knowledge of Penson's voice was from audio tapes conducted out of sight. Second, he stated that the tapes were of bad quality. Third, he argued, that "there is more than one male voice on the tapes, there's children, and too many other noises to determine who was talking on the tape without the testimony of the informant. The informant is not here and cannot be questioned." The trial court denied the motion, ruling in part that it could conclude from circumstantial evidence that the officer could identify Penson's voice, that the transactions took place in an apartment where the officer knew Penson to reside, and that the officer had experience with the confidential witness identification of Penson as the seller.

To summarize the objections made at the hearing, Penson objected to OfficerRusterholz's testimony on the basis that he lacked personal knowledge that Penson was the person whose voice was on the audio tapes, and he objected to the admission of the tapes as a violation of the Confrontation Clause because the informant was not available for cross-examination. Penson argues in his brief that in allowing the officer to testify about what an informant had said, the trial court violated Penson's constitutional right to confront and cross-examine the witness against him, that the officer used hearsay to establish every factual allegation against Penson, that the State could not have connected him with illegal activity without the use of hearsay evidence from an anonymous informant, and that the outcome well might have been different had Penson been allowed to cross-examine the anonymous informant.

Although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). However, we will not address constitutional issues raised for the first time on appeal, as when an appellant argues that a trial court's denial of his hearsay objection violated his right to confront his accusers. See Martin v. State, 316 Ark. 715, 875 S.W.2d 81 (1994). Penson did not argue to the trial court that Rusterholz's identification testimony violated the Confrontation Clause because the informant was not present and could not be cross-examined; therefore, the argument is procedurally barred from our appellate review.

The State contends that the admission into evidence of the informant's recorded statements did not violate the Confrontation Clause because they were not offered for thetruth of the matter asserted. The admission of non-hearsay does not constitute a Confrontation Clause violation. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000), quoting United States v. Inadi, 475 U.S. 387, 398 n. 11 (1986). "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c) (2000). An out-of-court statement is not hearsay if it is offered, not for the truth of the matter asserted, but to place other admissible statements in context. See Mock v. State, 20 Ark. App. 72, 723 S.W.2d 844 (1987).

We agree with the State. The audio tapes at issue recorded conversations between Penson and the informant during drug transactions. Penson's recorded statements were admissible because the rules of evidence, including the rule against hearsay, do not apply in revocation proceedings; and the informant's recorded statements were admissible because they were offered to provide the context for appellant's statements, rather than for the truth of the matter asserted therein. See Caswell v. State, supra, and Mock v. State, supra.

Affirmed.

Baker, J., agrees.

Roaf, J., concurs.