NOT DESIGNATED FOR PUBLICATION

DIVISION I

GARY LELAND TUCKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1312

October 24, 2001

APPEAL FROM THE UNION

COUNTY CIRCUIT COURT

[CR-98-166]

HONORABLE CAROL CRAFTON

ANTHONY, CIRCUIT JUDGE

AFFIRMED

Gary Tucker appeals the revocation of his probation. His two points on appeal are that the trial judge "abused her discretion" by (1) finding that he had inexcusably violated the terms of his probation and (2) sentencing him to six years in the Arkansas Department of Correction. We affirm.

Tucker was originally charged by information with the offense of terroristic threatening in the first degree; the information was subsequently amended to add the charge of stalking in the second degree. On August 24, 1999, Tucker entered into a plea agreement in which the terroristic threatening charge was nolle prossed in exchange for a guilty plea with regard to the second-degree stalking charge, a Class C felony. As a result of the plea agreement, Tucker was sentenced to probation for a period of three years, subject to various conditions. Some of these conditions included to obey all laws and court orders; to not possess or use anycontrolled substance except prescribed by a licensed physician; and to refrain from contact with the victim, Lynn Webb, Tucker's neighbor. The trial court also retained jurisdiction to change the terms of probation.

On November 18, 1999, the State filed a petition to revoke Tucker's probation, alleging that he had committed the offenses of criminal solicitation to commit capital murder, stalking in the first degree, and harassment, and that he had contact with the victim after being expressly ordered not to do so. A hearing was held on this petition to revoke on March 8, 2000, and Lynn Webb testified as to Tucker's conduct toward her, which consisted of yelling profanities at her and making obscene gestures toward her; watching her and running his finger across his throat; firing bottle rockets at her house; and stopping in front of her in the road so that she could not pass by in her car. Webb's mother testified that she had seen Tucker throw trash and roofing tacks on Webb's property. The trial judge took the issue under advisement, pending forthcoming psychological examinations and possible treatment options. However, she ordered that during the period of time that the issue was under advisement, Tucker was not to drive his truck, and he was not to leave his house except to go to his family's chicken houses, which were located in back of the family home. She also explicitly ordered Tucker not to walk on the county road or on the side of the property that abutted Ms. Webb's property.

On June 23, 2000, while the first petition to revoke remained under advisement, the State filed a second petition to revoke, alleging that Tucker had failed to remain homebound; that he had operated a motor vehicle; and that he had confessed to using a controlledsubstance. At the hearing on that petition, held on July 3, 2000, the State called Rick McKinnon, the area parole and probation supervisor for Union County, and Jerry Bickerstaff, Tucker's probation officer. Both men testified that on June 14, 2000, they went to Tucker's house, but his father told them that Tucker had gone to get some tomatoes. McKinnon asked his father to have Tucker remain at the house after he returned; the men returned to the residence later that day, and Tucker was there.

The next day, Tucker was interviewed in McKinnon's office with both McKinnon and Bickerstaff present. At that time, Tucker initially said that he had not used any illegal substances, but then he said that he had used illegal drugs about two months prior. He refused to identify what the substance was, but he said that it was so powerful you could only take one puff. Bickerstaff stated that as a result of Tucker's admission, a drug confession form was prepared and Tucker signed it. A drug screen was not performed at that time because of the lapse of time between the alleged use and the confession; however, a drug screen administered on June 30 tested negative for methamphetamines, cocaine, and THC marijuana.

Tucker denied that he had told anyone at the probation office that he had smoked something, and he denied that he had signed the drug confession form. He did say that he remembered the judge telling him that he could not drive his truck. He admitted that on the day the officers came to his house looking for him that he was not there, he was gone to get some tomatoes. He acknowledged that since he had been placed on probation, he had been in Magnolia once in May and twice in June; he claimed that during these times, he was campaigning for his "buddy," Mike Ross. He said that he knew he was not supposed to leavehis house, but Ross had asked him to campaign for him, and that request was more important than the court's order.

At the close of all the testimony, the trial judge found that Tucker had violated the terms of his probation, both in the matter she had taken under advisement and in the current matter. She specifically held that Tucker had violated the terms of his probation by having direct and indirect contact with Lynn Webb and by not remaining in his home as ordered while the first petition for revocation was taken under advisement. She then sentenced Tucker to six years in the Arkansas Department of Correction.

Tucker first argues that the trial judge "abused her discretion" when she found that he had inexcusably violated his probation. We hold that there is sufficient evidence to support the trial court's decision to revoke Tucker's probation. A trial court may revoke a defendant's probation if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his probation. Ark. Code Ann. § 5-4-309(d) (Supp. 1999). In probation revocation proceedings, the State has the burden of proving that appellant violated the terms of his probation, as alleged in the revocation petition, by a preponderance of the evidence, and this court will not reverse the trial court's decision to revoke probation unless it is clearly against the preponderance of the evidence. Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998). In testing the sufficiency of the evidence, we view the evidence in the light most favorable to the State. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).

Tucker does not argue that he did not violate the terms of his probation; rather, he contends that such violations were excusable because he had been diagnosed with paranoid schizophrenia and mild mental retardation. However, in the two psychological examinations of Tucker that were presented to the trial court, both of which were performed by Dr. William C. Peel, it was found that the use of mental defect or illness as a defense was not applicable to him.

In the present case, Tucker did not remain homebound as ordered by the court, and he admitted as much in his own testimony. He stated that on three occasions he was in Magnolia campaigning for Mike Ross, and that he had gone to get some tomatoes the day the officers came to see him. This evidence supports the finding that Tucker inexcusably violated the condition of his probation that he remain confined to his residence. Furthermore, there was evidence presented by Lynn Webb on the first petition to revoke probation that Tucker continued to make both direct and indirect contact with her, which was in direct violation of the condition of his probation that he have no contact with her.

Tucker also argues that the trial judge "abused her discretion" in sentencing him to a term of six years in the Arkansas Department of Correction. However, Tucker made no objection to the sentence at the trial court level; therefore this point is not preserved for appeal. See, e.g., Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). Nevertheless, the trial judge did not err in sentencing Tucker to six years in the Arkansas Department of Correction. Second-degree stalking is a Class C felony. See Ark. Code Ann. § 5-71-229(b)(3) (Repl. 1997). A person convicted of a Class C felony can be sentenced to a term of imprisonmentof not less than three years nor more than ten years. Ark. Code Ann. § 5-4-401(a)(4) (Repl. 1997). If a court revokes a term of probation, it may enter a judgment of conviction and may impose any sentence that might have been originally imposed for the offense of which he was found guilty. Ark. Code Ann. § 5-4-309(f)(1)(A) (Supp. 1999). The six-year sentence imposed upon Tucker was within the sentence range allowed for Class C felony offenses; therefore, the trial court did not err in sentencing him to six years in prison for the offense of stalking in the second degree.

Affirmed.

Hart and Jennings, JJ., agree.