ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION II

PATRICK EUGENE ALLEN,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR02-31

JANUARY 22, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR2001-189,

HON. DAVID N. LASER, JUDGE

AFFIRMED

On April 27, 2001, Patrick Eugene Allen pled guilty to possession of a controlled substance and was placed on supervised probation for six years. On August 6, 2001, the State filed a petition to revoke his probation, alleging that he had violated nine conditions of his probation. The Circuit Court of Crittenden County conducted a hearing on the petition and found that Allen had violated two conditions. On this basis, the court revoked Allen's probation and sentenced him to ten years' imprisonment in the Arkansas Department of Correction. This appeal followed.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court, Allen's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, and

a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Allen was provided with a copy of his counsel's brief and was notified of his right to file points for reversal within thirty days. He filed a pro se brief, and the State filed a brief responding to his arguments.

We first address the matters raised in counsel's no-merit brief. The argument portion of his brief addresses the trial court's denial of the motions for directed verdict and the court's rulings on the only three objections made at trial. Because two of those objections were decided in appellant's favor, there was no need to list or explain those rulings in this no-merit appeal. Anders specifies that counsel's request for permission to withdraw must be accompanied by a brief referring to "anything in the record that might arguably support the appeal," and Arkansas Supreme Court Rule 4-3(j)(1) requires that the argument portion of counsel's brief must list "all rulings adverse to the defendant" and must explain why each is not a meritorious ground for reversal. Thus, we address only the directed verdict motions and the one objection decided adversely to appellant.

Motion for Directed Verdict

If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation. Ark. Code Ann. § 5-4-309(d) (Supp. 1999). In order for appellant's suspended sentence to be revoked, the State need prove that the appellant committed only one violation of the conditions. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001).

A motion for a directed verdict is a challenge to the sufficiency of the evidence, the test for which is whether there is substantial evidence to support a verdict, viewing the evidence in the light most favorable to the appellee. Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997). On the issue of the revocation, the standard of review is different: in such cases, the trial court must find by a preponderance of the evidence that the defendant has failed to comply with the conditions of his suspension before it may be revoked. Alford v. State, 33 Ark. App. 179, 804 S.W.2d 370 (1991). On appeal, we do not reverse the trial court's decision unless it is clearly against the preponderance of the evidence. Id. The fact that evidence is circumstantial does not render it insubstantial. King v. State, 62 Ark. App. 112, 969 S.W.2d 199 (1998). A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, and, in that respect, we defer to the superior position of the trial court to make that determination. Kirby v. State, 52 Ark. App. 161, 915 S.W.2d 736 (1996).

The basis of appellant's motions for directed verdict, made at the close of the State's case and renewed at the close of all the evidence, was that the State had not proven that appellant violated specified conditions of the probation. The court granted the motion for directed verdict in part, but it found that the State had proven by a preponderance of the evidence that appellant had possessed cocaine and had failed to pay his fines and costs. The court further found that appellant's failure to pay was willful because he had the ability to pay.

Once the State introduces evidence of violation of the terms and conditions relatedto payment of fines and costs, the defendant bears the burden of going forward with some reasonable excuse for his failure to pay. Palmer v. State, 60 Ark App. 97, 959 S.W.2d 420 (1998). Here, the parties stipulated to the fact that appellant had been ordered to pay $1475 in fines and costs at the rate of $100 a month, and that the ledger sheet showed that no payments had been made. Appellant then testified that he was on parole and had been told not to pay until his probation began; that he had not paid his fines because he had been in jail; and that had intended to pay with $1900, which he had earned from working two jobs, but that the money was taken from his pants pocket when he was "busted."

The trial judge was not required to believe appellant's testimony. See Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). Because this testimony was key to the issue of whether appellant had a reasonable excuse for his failure to pay costs and fines, we agree with counsel that the ruling that appellant willfully failed to pay fines and costs would not form a basis for reversal. Further, we hold that the stipulation that appellant had not paid fines and costs constituted sufficient evidence to uphold the trial court's finding that appellant violated a condition of his probation.

The Public Defender's Objection to His Involvement in the Case

In addition to denying appellant's motions for a directed verdict, the trial court ruled adversely to appellant at the beginning of the hearing by denying the public defender's objection to his involvement in the case. The public defender presented the following argument in support of his motion:

Your honor, ... the defendant does have new pending charges, has hired privatecounsel on that, you know it is the position of the public defender's office that private counsel should be here to represent the defendant on the revocation also because, you know, whether or not we decide to put the defendant on the stand, and/or our witnesses, is all based upon that new charge and could adversely or, affect the new charge or, you know, it could benefit.

The trial judge commented that the public defender had been appointed on September 25, and that the public defender's office was in as good a position as private counsel to make decisions in the best interest of appellant regarding the revocation case and how it might affect any pending case. The date of the hearing was November 5, 2001.

Rule 8.2 of the Arkansas Rules of Criminal Procedure states that appointed attorneys shall continue to represent an accused indigent until relieved for good cause or until substituted by other counsel. Here, there is no record that private counsel had entered an appearance or moved to be substituted as counsel of record. See Grillot v. State, 346 Ark. 383, 57 S.W.3d 180 (2001) (motion for substitution of counsel on appeal was granted where private counsel had entered appearance and made motion for substitution). We find no error in the trial court's ruling that the revocation hearing would proceed with only the public defender acting as appellant's attorney.

Appellant's Pro Se Brief

We now turn to the points raised by appellant in his pro se brief. We reproduce the nine points as he presents them:

Points of Counsel

My private counsel was there:

I, Patrick Alle[n] shouldn't had a public defender to handle my case:

Insufficient Counsel:

Points of Evidence

1. My right was never read.

I, Patrick Allen was on parole at time I was place on probation

There was no probable cause to kick my door in

I didn't get a chance to cross examination the witness

I, Patrick Alle[n] don't think that I was represent probable.

My Probation officer was Lynn Thornton and Husband was Micky Thornton and that was a conflict entryes

And Controlled Substance that was found in the house was non Prossess And was not gave enough time to pay fine. . . .

Appellant's first two "points of counsel" regard his representation by only the public defender. This point was briefed by his counsel, and we have addressed it earlier in this opinion. Likewise, counsel briefed appellant's contention that he did not have time to pay his fines and costs, and we have addressed that point also. We need not address appellant's contention that the revocation should be overturned because the State nol-prossed his felony charges, in light of our holding that the fines-and-costs condition constitutes sufficient evidence to uphold the revocation of appellant's probation. See Willis v. State, 76 Ark. App. 81, 62 S.W.3d 3 (2001). Finally, appellant's remaining points were not raised below and cannot be brought for the first time on appeal. Benton v. State, 50 Ark. App. 90, 91, 901 S.W.2d 858, 858-59 (1995).

We agree that the appeal is wholly without merit. Therefore, counsel's request to be relieved as counsel is granted, and appellant's convictions are affirmed.

Motion granted; conviction affirmed.

Pittman and Hart, JJ., agree.