DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR01-281

October 31, 2001

NORRIS W. ROBINSON AN APPEAL FROM JACKSON

APPELLANT COUNTY CIRCUIT COURT

[CR96-26]

V. HON. HAROLD ERWIN, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Norris Robinson appeals from the revocation of his probation. His sole argument on appeal is that the trial court erred in excluding negative drug test results. We hold that the trial court's decision to exclude appellant's offer of proof of the negative drug test result was not an abuse of discretion. Thus, we affirm.

In September 1996, appellant pled guilty to theft by receiving and was placed on probation for three years. In May 1998, the State filed a petition to revoke appellant's probation, alleging that he violated the conditions of his probation by testing positive for cocaine usage. His probation was extended for an additional four years as a result of this violation. The State filed a second petition to revoke in October 1999, again alleging that appellant tested positive for cocaine usage. Appellant was sentenced to pay a fine and hisprobation was continued. On January 19, 2001, the State filed a third petition to revoke on the same ground. It is from this petition that the current appeal arises.

During the revocation hearing, Bob Wilkin, appellant's probation officer, testified that he had conducted a drug-screen test on appellant that yielded positive results for cocaine usage. He also testified that appellant admitted lying to him on two prior occasions when he denied using cocaine.

Wilkins further testified that he had received a four-hour training course in which he received instruction on how to conduct drug tests. He stated that the drug tests are supposed to be 99.9% accurate, but "there is a margin of error built into the test" in that the amount of the drug required to be detected depends on the drug. He also testified that the tests are not "perfect" and that within the last three years two or three probationers tested positive for drug usage when he tested them, but their subsequent tests by the hospital revealed negative results for drug usage.

Appellant testified that he had not used cocaine while on probation. He stated that he "kinda lied" when he indicated at the prior hearings that he had not been around people who using drugs, but insisted that he last used cocaine ten to fifteen years ago. Appellant said that Wilkins tested him at noon. After he tested positive, asked Wilkins to allow him to submit to another test, but Wilkins stated that he did not have time. Therefore, appellant went to the hospital for another test.

Appellant sought to introduce a copy of the purported hospital drug test results into evidence. The State objected based on a lack of foundation. Appellant's attorney arguedthat the hearsay rule does not apply in revocation hearings; the court agreed but stated that the evidence required a foundation. The court examined the written copy of the test results and noted that it was not signed. The only writing on it, placed presumably by appellant's counsel, was "D-X-1 Proffered" to denote it as Defendant's Exhibit 1.

Appellant's counsel indicated that he would lay a foundation for admission of the results. Appellant then testified that he went to the Newport Hospital for the test and was seen by a Dr. Hunt. He said that these results indicated that he tested negative for cocaine usage. Appellant testified that no one went into the bathroom with him at the hospital when the test was conducted, as Wilkins did when he tested appellant. He stated that at the hospital, "the door wasn't shut or nothing, you know, I just walked in there and used it and stepped right out." Appellant admitted that he had his back turned and that no one watched him provide the urine sample. He said that he went "straight to" the hospital for another test, but also stated that he went to the hospital "a couple of hours" after Wilkins tested him. He also testified that he had tested "clean" three or four times.

After appellant testified, his counsel argued that the State failed to meet its burden by a preponderance of the evidence because appellant testified that he "tested clean" on the second test. The State countered that the only evidence of a clean test was appellant's testimony. The State noted that there was no testimony by hospital laboratory personnel and, by appellant's own admission, there were no controls over the sample obtained at the hospital.

The court observed that this was the third time that appellant had appeared on arevocation petition on the basis of using cocaine. The court accepted the proffer of the drug results from the hospital, but refused to admit the results, stating:

There is no way this Court is going to accept a test that's not done in any standard at all to which this Court knows that this test is valid or not. Therefore, I do not find that this is reliable to any extent. It is very easy to get any urine and give it to him. I don't know if he did that or didn't do that, but this is to me worthless.

The court revoked appellant's probation. Appellant's attorney again attempted to prove that he had laid a proper foundation by stating that appellant testified that he took the test and that they were proffering the results. The court noted that was why it accepted the proffer, but stated that if "[y]ou want to introduce competent testimony on this, you've got to enter something to show it is valid and shows what test it is, . . ." Appellant's counsel attempted to reiterate that he had done so through appellant's testimony. The court and appellant's counsel then engaged in a discussion in which appellant's counsel unsuccessfully attempted to persuade the court that it had accepted such testimony or drug results in the past. The court again noted that this was appellant's third appearance on the same violation and sentenced him to serve five years in the Arkansas Department of Correction based upon his original charge of theft by receiving.

We hold that the trial court did not err in revoking appellant's probation. In revocation proceedings, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his probation. See Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). In order for appellant's probation to be revoked, the State need only prove that the appellant committed a single violation of the conditions. See Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). We will not reverse the trial court'sdecision unless its findings are clearly against the preponderance of the evidence. See Jones v. State, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. See Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Whether the State has met its burden turns on questions of credibility and weight to be given testimony, and we defer to the trial judge's superior position to make those determinations. See Jones v. State, supra.

Appellant maintains that the results of the drug test performed at the hospital are admissible pursuant to Arkansas Code Annotated section 5-4-310(c)(2) (Repl. 1997), which provides: "The court may permit the introduction of any relevant evidence of the alleged violation, including letters, affidavits and other documentary evidence regardless of its admissibility under the rules governing the admission of evidence in criminal trials."

Appellant argues that he laid a proper foundation because he testified that he took the test at the Newport Hospital and the document is titled with Newport Hospital letterhead. He asserts that the entire basis for the probation revocation was the positive drug analysis and maintains that had the second test results been admitted, the State could not have carried its burden of proof.

We hold that the trial court did not abuse its discretion in refusing to admit the drug test results from the hospital. It is true that the rules of evidence do not strictly apply to a revocation hearing as they do in a trial. See Ark. R. Evid. 1101(b)(3); Ark. Code Ann. § 5-4-310(c)(2) (Repl. 1997); Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). It is also true, as appellant asserts, that section 5-4-310(c)(2) permits the introduction of anyrelevant evidence regardless of whether it would be admissible in a criminal trial.

However, the explicit language of section 5-4-310(c)(2) clearly requires that the evidence must be relevant. Relevant evidence in any proceeding, criminal or otherwise, is evidence that tends to "make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ark. R. Evid. 401. The admission of relevant evidence under section 5-4-310(c)(2) is discretionary. Further, the statute implies that the court may exclude irrelevant evidence. Here, the trial court rejected the evidence in this case as unreliable because it was clear that the hospital test was not administered in such as way as to ensure that the urine sample submitted for testing was actually appellant's. Because the hospital's drug test was unreliable, the results of that test would not tend to make it more or less probable that appellant tested negative for cocaine usage. Therefore, the trial court properly excluded the hospital's test results.

Appellant notes that Wilkin's testimony was the only evidence of his drug usage and asserts that he suffered prejudice because if the results of the hospital's drug test had been admitted, the State would not have been able to carry its burden of proof. Appellant's argument implies that the State cannot carry its burden of proof unless its evidence is uncontradicted. This argument is without merit. Had the trial court admitted the hospital's test results, the court would have simply weighed the conflicting evidence, including the reliability of the testing methods and the credibility of appellant and Wilkins. While the fact that appellant had apparently lied to his probation officer on two prior occasions was notdirect evidence that he used cocaine on this occasion, that testimony was relevant as to appellant's credibility during this hearing. As noted previously, weighing the testimony and assessing the credibility is the function of the trial court. See Jones v. State, supra. Thus, even if the trial court had admitted the hospital's test results, this would not have prevented the State from proving beyond a preponderance of the evidence that appellant violated the terms of his probation by using cocaine.

Based on the foregoing, we affirm the trial court's order revoking appellant's probation.

Affirmed.

Bird and Crabtree, JJ., agree.