ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR01-650

December 5, 2001

TOMMY FARMER AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CR98-168-I]

V. HON. JOHN HOMER WRIGHT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Tommy Farmer appeals from the revocation of his probation. His sole argument is that the trial court erred in admitting a crime lab report over his objection. We find that the trial court erred when it received the report into evidence because, pursuant to Arkansas Rule of Criminal Procedure 19.2, the State was under a continuing obligation to supply appellant any information requested in the initial discovery request and failed to provide the report to appellant. However, because the State proved by preponderance of the remaining evidence that appellant possessed a controlled substance, we hold the error was harmless. Therefore, we affirm.

In 1998, appellant pleaded guilty to the offense of possession of a controlled substance. He was placed on probation for five years. Condition six of the terms ofappellant's probation required him to obey all federal and state laws, local ordinances, and court orders. Condition seven prohibited him from owning, using, or having under his control any deadly weapon or firearm or imitation thereof. In September 2000, Officer Russ Rhodes of the Arkansas State Police clocked appellant on radar traveling at eighty-six miles per hour and stopped him for speeding. After appellant was cited for speeding and for not having proof of insurance, he consented to a search of his person and his vehicle. When appellant pulled his hands out of his pockets, Rhodes discovered that appellant had in his left hand a plastic bag containing a white, powdery substance. Rhodes also observed the "butt-end" of a pellet gun in appellant's truck. Rhodes seized the plastic bag and its contents, but did not seize the weapon. A report from the Arkansas State Crime Laboratory subsequently identified the substance as .329 grams of methamphetamine. The State thereafter petitioned to revoke appellant's probation, alleging that he violated condition six of his probation by possessing a controlled substance, methamphetamine, and by receiving a citation for speeding and having no proof of insurance, and that he violated condition seven by possessing an imitation of a deadly weapon, a pellet gun.

Two hearings were held on the State's petition to revoke, on December 11, 2000, and January 29, 2001. At the December 11 hearing, Evon Gillis, appellant's probation officer, testified that the bases of the petition to revoke were the laws and ordinances violations and a weapons violation.

Officer Rhodes also testified. The State sought to elicit testimony from Rhodes regarding the results of a field-test he conducted of the substance found in appellant'spossession. Appellant objected based on lack of foundation. He also argued that field-test results were not admissible in a revocation hearing. The court indicated its belief that field-test results were admissible. However, the State withdrew the question before Rhodes answered and the results of the field-test were never offered or admitted.

The State also sought to introduce a copy of the crime lab report indicating that the substance found in appellant's possession was identified as .329 grams of methamphetamine. Appellant objected to the admission of the report, arguing that the State failed to provide the report during discovery and that he was entitled to confront the witnesses against him. The State countered that it received the report on November 30, that it maintained an open-file policy, and that appellant had access to the file at any time. Finally, the State asserted that appellant did not notify the State that he wished for the chemist to be present.

The court noted that appellant obviously would not put the State on notice that he requested the chemist's presence if he had no notice a lab report was being introduced.1 Nonetheless, the court allowed the testimony, indicating that it would be subject to appellant's motion to strike. After Rhodes's testimony, appellant renewed his objection to the lab report on the same ground. The court took the issues under advisement and sent theparties a letter on December 21, 2001, indicating his ruling. The court overruled appellant's objection to the admission of the lab report, reasoning that appellant had made no further motion for discovery since his arraignment and the State was under no formal obligation to supplement the discovery that it had voluntarily provided. However, the trial judge also opined that the State had an affirmative duty to notify defense counsel of material added to the State's file after the defendant had inspected and copied the file. Curiously, he also stated that his ruling was "somewhat academic" because he had previously overruled appellant's objection to the field-test results.2

The court reconvened on January 29, 2001. Appellant testified in his own behalf and admitted that he was in possession of methamphetamine on the day Rhodes stopped him. Appellant noted that the court never ruled on his prior objection, to which the court responded, "Well, I guess I did just rule on it." The court noted appellant's continuing objection, but found that appellant violated the conditions of his probation. The court revoked appellant's probation and sentenced him to serve five years in the Arkansas Department of Correction. This appeal followed. Appellant challenges only the admissibility of the lab report.

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 Stateneed only prove that the appellant committed a single violation of the conditions. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). We will not reverse the trial court's decision 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.

Rule 17.1 of the Arkansas Rules of Criminal Procedure imposes an affirmative duty upon the State to provide a defendant access to the evidence to be used against him in such a manner as to allow a defendant to prepare his defense. See Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998). In addition, Rule 19.2 imposes upon the State the affirmative duty to continue to disclose additional information comprehended by a previous request to disclose. See Rayford v. State, 326 Ark. 656, 934 S.W.2d 496 (1996). However, the State's failure to comply with these rules is not a basis for reversal unless the failure to comply results in prejudice to the defendant. See Rychtarik v. State, supra.

It is undisputed here that the State initially complied with appellant's discovery requests through its open-file policy, but received the crime lab report after appellant had completed discovery and failed to inform him of the existence of the report or its contents. Appellant maintains that the trial court erred in overruling his objection to the admission of the report simply because appellant did not formally request further compliance with Rule17.1. We agree that the trial court erred in admitting the lab report because the State was under a continuing duty to supply to appellant any information comprehended by his initial discovery report. See Ark. R. Crim. P. 19.2; Rayford v. State, supra. Furthermore, this duty was not relieved by maintaining an open file. See Findley v. State, 64 Ark. App. 291, 984 S.W.2d 454 (1998). To the contrary, Rule 19.2 expressly requires that a party becoming aware of additional material or information shall promptly notify opposing counsel. See id. Therefore, appellant was not required to make a second request, formal or otherwise, because a lab report confirming the criminal nature of the substance seized would be encompassed by appellant's original discovery motion requesting that the State be ordered to "fully comply with the Rules of Criminal Procedure and applicable case law and provide discovery and disclosure." The trial judge acknowledged the State's duty in this regard in his letter, but inexplicably overruled appellant' s objection to the admission of the report. In light of the foregoing authorities, we hold the trial court's ruling was in error.

However, we nonetheless affirm because the error in this case is harmless. Appellant asserts that he was prejudiced because the crime lab report was the only evidence presented by the State to show that the substance found in his possession was methamphetamine, as the field-test result was not admitted. Contrary to appellant's assertion, he cannot demonstrate prejudice because the trial court had additional grounds for revoking his probation. In Bonds v. State, 298 Ark. 630, 770 S.W.2d 136 (1989), the Arkansas Supreme Court held that the defendant had been denied due process by the State's failure to respond to his motion for discovery seeking disclosure of the evidence against him. However, thecourt found the error was harmless because the defendant admitted the violations with which he was charged at the revocation hearing. See id.

Similarly, here, appellant testified on his own behalf and admitted that he possessed methamphetamine at the time he was stopped. In addition, appellant's receipt of a citation for speeding was an additional ground that the State alleged as a basis for revoking his probation. Rhodes testified that he clocked appellant on radar traveling at eighty-six miles per hour and that appellant received a citation for speeding. Moreover, appellant admitted at the hearing that he was speeding. Revocation may be based on what is arguably a de minimis violation. See Simmon v. State, 13 Ark. App. 208, 681 S.W.2d 422 (1985)(affirming revocation on grounds that appellant failed to report to his probation officer and failed to pay fines).

Arguably, the trial judge did not revoke appellant's probation based on the speeding citation. He did not specify on which grounds he was revoking appellant's probation, but after he revoked appellant's probation, he noted that appellant had been convicted of possession of a controlled substance. Appellant's possession of a controlled substance was not a de minimis violation. Because the State was only required to prove that appellant violated a single condition of his probation and because appellant admitted that he was speeding and possessed methamphetamine, we affirm the trial court's revocation order.

Affirmed.

Stroud, C.J., and Pittman, J., agree.

1 Arkansas Code Annotated 12-12-313(a)(1)(Repl. 1999) allows the admission of records and reports of drug analyses made by the State Crime Laboratory as competent evidence subject to the applicable rules of criminal procedure. Subsection (b) provides that nothing in this section shall be deemed to diminish a defendant's right of cross-examination if notice of intention to cross-examine is given prior to the date of a hearing or trial pursuant to the applicable rules of criminal procedure. Subsection (a)(2) requires a defendant to give at least ten days' notice prior to the proceedings that he requests the presence of the analyst of the State Crime Laboratory who performed the analysis for the purposes of cross-examination.

2 This implies that the results of the field-tests were admitted; however, they were neither offered nor admitted. Further, the trial court did not rule on this issue, because the State withdrew its request for Rhodes's testimony in this regard.