ARKANSAS COURT OF APPEALS

WENDELL L. GRIFFEN, JUDGE

NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR01-415

November 28, 2001

AARON A. FLEMONS AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR99-966; CR00-22]

V. HON. JOE MICHAEL FITZHUGH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Aaron Flemons appeals from the revocation of his suspended sentence. He argues the trial court erred in revoking his sentence because the State did not show by a preponderance of the evidence that he violated the conditions of his probation. He further argues that the trial court should not have considered a criminal mischief charge as a basis for revoking his sentence because he never received notice of the amended petition to revoke asserting this charge as a basis for revocation. We hold that the trial court's decision revoking his probation was not clearly erroneous. Thus, we affirm.

On May 31, 2000, appellant pleaded no contest to aggravated assault, fleeing, and interference with child custody. He received a suspended sentence of seventy-two months. He was also ordered to pay a $500 fine and to pay court costs of $150, which he paid. In addition, he was ordered to complete an anger-management class.

Between July 3, 2000, and October 13, 2000, the State filed and three times amended a petition to revoke appellant's sentence, alleging that he 1) had not completed the anger-management class; 2) had been charged with aggravated assault; 3) had been charged with possession of a controlled substance (cocaine) with the intent to deliver; and 4) had been charged with criminal mischief.

At the beginning of the revocation hearing, appellant's counsel informed the court that he never received a copy of the third amended petition to revoke, which added criminal mischief as the final basis for the State's grounds for revocation. Appellant's counsel stated that he was not prepared to address the issue of criminal mischief. The State presented no evidence that the public defender's office had been served notice of the third amended petition to revoke. The court noted that appellant appeared for the plea and arraignment on the criminal mischief charge on October 18, 2000, which was currently pending, and that the public defender's office also represented him during those proceedings. Appellant's counsel objected that the basis for revocation has to be in the petition for revocation, regardless of whether the public defender was also appointed on the underlying charge. The court noted appellant's objection, but ruled that it would proceed with criminal mischief as one ground for revocation.

Only one witness testified with regard to the evidence supporting the criminal mischief charge. Shanna Hunter testified that she and appellant had been dating for twomonths at the time of the incident. On August 6, 2000, she was a passenger in the front seat of a vehicle, and she and two other women were going to the Yorkshire Apartments to visit a friend. Hunter identified the driver only as Lameshia and described the car as a green car with four doors. She stated that when they pulled up into her friend's driveway, appellant and another man came out to the car. She stated that appellant attempted to get in the car, but the car doors were locked. Hunter testified that appellant said to her, "Bitch, get out of the car." She told him, "No." He said, "Okay," then began stabbing the hood of the car with a screwdriver or an ice-pick. She said they drove to a nearby convenience store and telephoned the police. Hunter described the damage to the car as "the big ole[sic] scrape and a big puncture wound in the hood." Hunter went to a collision-repair shop with Lameshia, but she did not know what estimate for repairs was given to Lameshia. Before appellant's attorney cross-examined Hunter, the trial court offered to let him interview her privately in the jury room, but appellant's counsel declined.

Rusty Walker, an investigator with the Fort Smith Police Department, testified next. He interviewed appellant pursuant to the investigation of the criminal mischief charge. Walker testified that appellant told him that he was upset and that he had punctured and scratched the hood of the car with an ice pick.

Sergeant William Dumas provided testimony concerning the events that led to the possession charge. Appellant was booked into the Sebastian County Detention Center onor near August 25, 2000.1 At that time, his clothing was taken from him and stored in a numbered, plastic container in the property room at the center. Dumas, an officer with the Sebastian County Detention Center, testified that on September 9, a Deputy Riley informed him that there might be drugs in the property room. Later that same day, Riley gave him appellant's name. Dumas obtained the number for the plastic basket in which appellant's clothes had been stored. Dumas testified that the door to the property room is locked and that only the deputies and official personnel have access to the property room. He stated that he brought appellant's basket into the intake area, which is monitored by a camera. Dumas and Riley searched appellant's clothing. Dumas searched appellant's pants, which were windsuit pants. He patted down the outside of the pants and felt something in the bottom left pant leg. He went into the pants leg through a hole in the crotch area of the pants. He then put on gloves and stuck his hand into the pants leg and was facing the camera while he did so. Dumas found a baggie with white rocks in it in appellant's pants leg. Dumas told Deputy Riley to go get appellant, and he showed the baggie to Officer Parsons, who had observed the search.

When Riley returned with appellant, Dumas mirandized him and asked if the black pants belonged to him. Appellant admitted the pants were his. Dumas then asked if the baggie was his and appellant shook his head and said, "[Y]ou guys are trying to set me up." Dumas transported the white rocks to the evidence room at the sheriff's office. John Miller,a narcotics officer with the Greenwood Police Department, testified that he performed a field test on the substance that Dumas gave him and that the substance tested positive for cocaine.

Anthony Nevers, appellant's stepfather, testified with regard to the conduct supporting the aggravated-battery charge. He stated that appellant had been barred from his home due to a previous altercation with the children in the home. Nevers works at night. On the afternoon of August 1, he was in his bedroom, sleeping in his bed. He heard someone say that appellant was downstairs. Nevers stated that appellant barged into his bedroom and stood beside his bed. Nevers, an eight-year veteran police officer from Jamaica, saw a bulge and an impression on appellant's side resembling a gun. Nevers said appellant moved his hand to his side where the bulge was and stated, "Hey, guy, I have 13 in this clip," and "I will give you all of them." He testified that he was frightened and jumped off of the bed; he further stated that he would not try to approach a person with a gun, but would "try in the utmost to defend himself."

Laura Johnson, who supervises court-ordered counseling for the Sebastian County Prosecuting Attorney's Office, testified that appellant failed to complete an anger-management class. She stated that on June 21, 2000, she sent appellant a letter regarding the status of his counseling and gave him ten days to reply. Johnson received no response from him, but the letter was not returned. She testified that she received "nothing" from appellant and that he never contacted her to explain why he failed to attend any anger-management classes.

At the close of the State's case, appellant moved for a directed verdict on the groundsthat the State failed to meet its burden of proof with regard to the possession of cocaine charge and the aggravated assault charge. Appellant did not thereafter present any testimony, but renewed his motions. The trial court immediately thereafter asked if either counsel wished to make statements. With regard to the possession with intent charge, appellant's counsel argued that the State failed to prove that the items were in his possession because his clothing had been in the possession of the Sebastian County Sheriff's Department for approximately seventeen days when the drugs were found. With regard to the aggravated assault charge, he maintained the evidence did not prove that he drew a gun. Appellant's counsel also objected to the criminal mischief charge on the ground that he did not have notice that the charge was going to be in the petition to revoke because he did not receive a copy of the State's final amended petition.

The trial court noted that the conduct alleged by the State supporting any one of the three criminal charges was sufficient to revoke appellant's probation. It sentenced appellant to serve six years in the Arkansas Department of Correction.

In order to revoke a suspended sentence, a trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension. See Ark. Code Ann. § 5-4-309(d) (Repl. 1997). When appealing a revocation, the appellant has the burden of showing that the trial court's findings are against the preponderance of the evidence. See Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). On appellate review, we uphold a revocation unless the trial court's findings are clearly against a preponderance of the evidence. See id. Evidence that is insufficient tosupport a criminal conviction may be sufficient to support a revocation. See id. We give due regard to the trial court's superior position to determine the credibility of the witnesses and the weight to be given their testimony. See Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996).

I. Criminal Mischief

Appellant first argues that the trial court should not have considered the evidence supporting the criminal mischief charge as a basis for revocation because he never received notice that this charge was a ground for revocation. Appellant's counsel informed the court that he never received a copy of the third amended petition filed by the State, in which the State alleged that appellant had been charged with criminal mischief. The State did not produce any confirmation of service. Therefore, he maintains that use of the evidence supporting this charge as a basis for revocation violates his due process right to have notice of the charges against him.

Alternatively, appellant challenges the sufficiency of the evidence supporting the criminal mischief charge. He argues that there was no evidence presented regarding amount of damages. Specifically, he maintains that the State failed to present any proof of damages to the car in excess of $500, which the State was required to do to show that appellant had been charged with felony criminal mischief. See Ark. Code Ann. § 5-38-203(a)(c)(Repl. 1997).

The State counters that appellant's argument with regard to the sufficiency of the evidence supporting the criminal mischief charge is not preserved, because he did notchallenge the sufficiency of the evidence supporting the charge. He only challenged the charge based on his lack of notice. The State appears to be correct in that in his original motion for a directed verdict, appellant only challenged the sufficiency of the evidence with regard to the possession with intent to deliver charge and the aggravated assault charge. The trial court denied appellant's motion, which appellant renewed. The court then asked if counsel wanted to make further arguments. At this point, appellant's counsel renewed his objection to the criminal mischief charge on the ground that appellant did not have notice that this charge was going to be included in the petition to revoke. Pursuant to Miner v. State, 342 Ark. 283, 27 S.W.3d 280 (2000), appellant's challenge to the sufficiency of the evidence with respect to the criminal mischief charge would be procedurally barred because he failed to challenge the sufficiency of the evidence with respect to this charge in his motion for a directed verdict.

However, in an opinion delivered on October 11, 2001, the Arkansas Supreme Court overruled Miner v. State, supra, and held that the requirements of Arkansas Rule of Criminal Procedure 33.1 do not apply to revocation hearings. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). Therefore, appellant was not required to challenge the sufficiency of the evidence on this charge in order to preserve the issue for appellate review.

The State's only witness in this regard, Hunter, was a passenger in the car. She testified that appellant scraped the hood of the car and punctured a hole in the hood with an ice pick. Appellant also admitted to Dumas that he scraped the car and punctured a hole in it. Appellant also argues that the State failed to meet its burden of proof in establishingcriminal mischief. A person commits criminal mischief in the first degree if he purposely and without legal justification destroys or causes damage to any property of another. See Ark. Code Ann. § 5-38-203(1) (Repl. 1997).

Appellant maintains that this evidence is not sufficient to show that he caused $500 in damages, which the State is required to prove in order to show that appellant committed felony criminal mischief. See Ark. Code Ann. § 5-38-203(a)(c)(Repl. 1997). However, as noted above, evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. See Ramsey v. State, supra. Even if the evidence might not have been sufficient to support a criminal conviction for felony criminal mischief, it was sufficient to establish by a preponderance of the evidence that appellant violated a term of his probation by committing felony criminal mischief. Moreover, we note that if the evidence in this respect was not sufficient, any error in this regard would be harmless because there were alternative grounds supporting the revocation of appellant's probation. See Farr v. State, 6 Ark. App. 14, 636 S.W.2d 884 (1982) (stating that where multiple offenses are alleged as justification for revocation of probation, the trial court's finding that revocation is justified must be affirmed if the evidence is sufficient to establish that the appellant committed any one of the offenses).

With regard to appellant's due process/notice argument, Arkansas law provides that the defendant shall be given prior notice of the time and place of the preliminary hearing, the purpose of the hearing, and the conditions of suspension or probation he is alleged to have violated. See Ark Code Ann. § 5-4-310(a)(3) (Repl. 1997). Appellant maintains thatbecause he did not receive notice that the criminal mischief charge was a basis for revocation, he was denied due process in that he had no opportunity to rebut the charges or adverse claims. See Southwestern Bell Tel. Co. v. Arkansas Pub. Serv. Comm'n, 58 Ark. App. 145, 946 S.W.2d 730 (1997).

The State concedes that due process requires a defendant to have notice of the alleged violations of his sentence and that it is the State's burden to notify the defendant of such alleged violations. See Hill v. State, 65 Ark. App. 131, 985 S.W.2d 342 (1999). In Hill, this court reversed the revocation of a defendant's probation where the State submitted evidence relating to allegations that were not in the State's petition to revoke and the trial court solely relied on that evidence to revoke the defendant's probation. See id. The Hill court stated that a defendant cannot properly prepare for the hearing without knowing in advance what charges of misconduct are to be investigated as a basis for the proposed revocation and must not be left to speculate upon what charges might emanate from the State's evidence on the day of the revocation hearing. See id.; see also Robinson v. State, 14 Ark. App. 38, 684 S.W.2d 824 (1985) (reversing where the defendant presented no evidence of justification where appellant had not been criminally charged with battery, battery was not alleged in the petition to revoke, and he had no indication that conduct supporting battery would be urged as the basis for his revocation until after the court's decision to revoke).

Unlike the defendants in the Hill and Robinson cases, appellant's due process rights were not violated because he was not required to speculate about the charges pending against him and because the trial court had alternate grounds for revoking appellant's sentence. Thethird amended petition to revoke alleging criminal mischief as an additional ground for revocation was filed on October 13, 2000. Appellant appeared for the plea and arraignment on the criminal mischief charge on October 18, 2000, and was also represented at that proceeding by the public defender's office. Before Hunter testified at the revocation hearing, the court gave appellant's counsel the opportunity to question her in private, but he declined. On these facts, it cannot be said that appellant's counsel had no opportunity to prepare for his defense or rebut the charges against him. Section 5-4-310 only entitles a defendant to fundamental fairness and an opportunity to be heard. See Lockett v. State, 271 Ark. 860, 611 S.W.2d 500 (1981). Here appellant was not denied either. Therefore, we hold that the trial court did not err in admitting the testimony regarding the conduct supporting the criminal mischief charge.

Further, even if the trial court erred in admitting this evidence, the error is harmless. It is evident that the trial judge considered the evidence supporting the criminal mischief charge as a ground for revocation, because he stated that, "any of these three offenses are indeed violations of the terms and conditions" of appellant's probationary sentence. However, because the State was only required to show that appellant violated a single condition of his probation, and because, as noted below, the court had alternative grounds for revoking appellant's probation, any error in this regard is harmless. See Farr v. State, supra.

II. Possession with Intent to Deliver

Appellant also argues that the State failed to prove that he possessed cocaine with theintent to deliver. He asserts that the State failed to prove constructive possession because the alleged contraband was found in a place in which he had neither immediate nor exclusive accessibility. He also argues that the State failed to prove the substance seized was cocaine.

Arkansas Code Annotated section 5-64-401 (Supp. 1999) provides that it is unlawful for any person to possess a controlled substance with the intent to deliver it.2 However, the State need not prove actual physical possession of a controlled substance in order to show a defendant possessed a controlled substance. See Mings v. State, 318 Ark. 201, 884 S.W.2d 596 (1994). Further, evidence that may not be sufficient to show constructive possession in a criminal proceeding may satisfy the burden of proof to show constructive possession in a probation revocation hearing. See Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). That is, constructive possession may be inferred on lesser proof in a revocation proceeding. See, e.g., Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996)(holding that appellant's possession of the key to a car containing cocaine was sufficient to support a finding that he violated the terms of his suspended sentence by possessing cocaine).

When appellant was arrested, his clothes were placed into an individually assigned basket. Approximately seventeen days later, upon information from a police officer, the clothes were searched and the suspected controlled substance was found in the lower leg of his pants. Appellant admitted that the pants containing the substance belonged to him. Officer Dumas testified that the property room remained locked and that no one but authorized personnel had access to the room. He further testified that, in the presence of two other officers, he conducted the search of appellant's clothing on camera in the intake area and immediately showed the baggie to the other officers. In short, appellant's pants were within his exclusive control at the time he was booked into the jail and thereafter, they were locked away and accessible only to authorized personnel. On these facts, we hold that the trial court did not err in finding that appellant violated a term of his probation by possessing cocaine with intent to deliver.

Appellant also argues that the State failed to prove the substance was cocaine because it offered no evidence that the substance was tested in a reliable manner and found to be cocaine. His argument is not persuasive because Miller, a narcotics officer with the Greenwood Police Department, testified that he performed a field test on the substance that Dumas gave him and that substance tested positively as cocaine. Therefore, we hold that the trial court did not err in finding the State proved by a preponderance of the evidence that appellant violated a condition of his probation by possessing cocaine with the intent to deliver.

III. Aggravated Assault

Appellant also argues that his stepfather's testimony was insufficient to establish that he committed an aggravated assault, because it did not establish that he drew a gun. Arkansas Code Annotated section 5-13-204(a) (Repl. 1997), provides that a person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person. Appellant does not concede that he had a gun, but maintains that pursuant to Wooten v. State, 32 Ark. App. 198, 799 S.W.2d 560 (1990), if a gun is not drawn and pointed, there is no aggravated assault. Even though the defendant in Wooten had drawn his gun, this court reversed because he never pointed the pistol in the officer's direction or expressly threatened the officer. See also Johnson v. State, 132 Ark. 128, 200 S.W. 982 (1918)(holding that a drawn weapon must be accompanied by threats evidencing an intention to use it).

Here, the witness, Nevers, admitted that he never saw a gun, only a bulge at appellant's side that he assumed was a gun. Nevers testified that appellant barged into his bedroom and said, "Hey, guy, I have 13 in this clip," and "I will give you all of them." Nevers was a former police officer and identified the bulge at appellant's side as a gun. He said that appellant moved his hands to his side as he made these statements. He testified that he was frightened and jumped off of the bed; he further stated that he would not try to approach a person with a gun, but would "try in the utmost to defend himself."

Therefore, it is clear that appellant neither presented a weapon nor pointed it at the victim. It is true that pursuant to Wooten, where it is clear that the defendant has a gun but does not use it to threaten the victim, the State cannot prove an aggravated assault. However, section 5-13-204 does not require the State to prove that a defendant used a deadly weapon, or any weapon, in order to prove that an aggravated assault was committed. The Wooten court stated that the offense of assault is not predicated upon the use of a deadly weapon or the creation of fear, but requires a substantial danger of death or serious physical injury to another person. See Wooten v. State, supra. The Wooten court's holding was based the fact the defendant had a gun, but never pointed the gun at the officer or expressly threatened him. See Wooten v. State, supra. That is, the reversal in the Wooten holding was based on a lack of evidence that the victim was threatened.

Thus, it appears from Wooten and Johnson that the threat to kill someone or to cause serious physical injury in conjunction with the representation of the immediate means to do so may be sufficient to satisfy the purposeful conduct element of the statute because the threat itself may provoke a violent response. Our United States Supreme Court has recognized that the display of a gun instills fear in the average citizen; as a consequence, it creates an immediate danger that a violent response will ensue. See McLaughlin v. United States, 476 U.S. 16 (1986); Holloway v. State, 18 Ark. App. 136, 74 S.W.2d 484 (1986)(overruled on other grounds)(applying the McLaughlin rationale to an aggravated assault charge).

Similarly, a defendant barging into a person's bedroom, and threatening to empty anammunition clip into that person while making a motion toward a bulge on the defendant's person that resembles a gun creates a substantial likelihood that a violent response will ensue. Indeed, in this case, the victim jumped up from the bed and appeared to be ready to defend himself. We hold that these facts are sufficient to show by a preponderance of the evidence that appellant inexcusably violated the condition of his probation. See Ramsey v. State, supra.

IV. Anger-Management Course

Appellant's final argument appears to be more akin to a fairness argument rather than a challenge to the sufficiency of the evidence regarding his failure to complete an anger-management course. He argues that he was given no deadline for completing the anger-management course and that the State's first petition to revoke was filed on July 3, 2000, barely one month later, solely on the ground that he had not completed the course. Appellant was incarcerated on August 25, 2000. He argues that he could not complete the course because the State made no attempt to allow him to attend the anger management course while he was incarcerated.

Appellant did not in any way challenge the fairness of including this term of probation as a ground for revocation. Therefore, he raises this argument for the first time on appeal. We will not consider arguments raised for the first time on appeal. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). Thus, we hold that appellant's argument with respect to whether he violated this term of probation is procedurally barred.

Were we to address the merits of this argument, we would find no error. Theevidence shows that appellant made no effort to enroll in an anger-management class. While the State cites appellant's failure to "complete" an anger-management course, it is clear that the basis for the State's original petition to revoke was his complete failure to initially enroll in such a class and to respond when the State sought to facilitate the fulfillment of this term of his probation. Laura Johnson, who supervises court-ordered counseling, testified that on June 21, 2000, she sent appellant a letter regarding the status of his counseling and gave him ten days to reply. She received no response and the original petition to revoke was filed thereafter on July 3. Therefore, appellant's initial failure to enroll in an anger management course was not due to his incarceration and his argument in this respect is without merit.

Affirmed.

Stroud, C.J., agrees.

Pittman, J., concurs.

1 It is unclear whether appellant was incarcerated at this time due to his criminal charges or due to the petition to revoke his sentence.

2 Appellant did not challenge the State's evidence with regard to whether the State proved he had an intent to deliver the cocaine.