NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

THOMAS BROWN, JR.

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-441

JANUARY 22, 2003

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[CR2000-718]

HONORABLE DAVID LASER, CIRCUIT JUDGE

AFFIRMED

Appellant, Thomas Brown, Jr., appeals the revocation of his probation by the Crittenden County Circuit Court. He was sentenced to seventy-two months in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in finding by a preponderance of the evidence that he violated the conditions of his probation. We affirm.

On February 21, 2001, appellant pled guilty to possession of a controlled substance with intent to deliver and was sentenced to five years' probation. The various conditions of his probation included: paying all fines, court costs, and restitution; living a law-abiding life; not violating any state, federal, or municipal laws; not using or possessing any illegal drug or controlled substance; submitting to drug testing; and reporting to his probation officer.

The State filed a petition to revoke appellant's probation alleging that he had violated the conditions of his probation by failing to pay fines and costs as directed, failing to report to his

probation officer as directed, associating with felons, associating with others violating criminal laws, failing to work at suitable employment, delivery of a controlled substance and possession and use of illegal drugs. At the hearing, Brenda Hinkle of the Crittenden County Sheriff's Office testified that appellant was delinquent in paying his fines and court costs. Lynn Thornton of the Arkansas Department of Community Corrections testified that on May 16 and June 15 appellant had tested positive for marijuana and cocaine, and he confessed to the use. She also testified that although appellant had recently shown improvement, he had previously failed to report to his probation officer. Derek Thomas and Camille Russell of the West Memphis Police Department testified that on June 8, 2001, appellant sold to Ms. Russell, an undercover agent, some crack cocaine for ten dollars. Following a hearing, the trial judge found that the State had proved by a preponderance of the evidence that Mr. Brown had violated the conditions of his probation in that there was a willful failure to pay fines and court costs, use of illegal drugs, and delivery of a controlled substance to an undercover agent. This appeal followed.

We have held that to revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of probation or suspended sentence by a preponderance of the evidence. See Ark. Code Ann. § 5-4-309(d) (Supp. 2001); Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Bradley, supra (citing Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986)). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861(1992); Gordon v. State, 269 Ark. 946, 601 S.W.2d 598 (1980)). Since the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Bradley, supra.

At the hearing, the State presented evidence of not only appellant's recent sale of crack cocaine to an undercover agent of the West Memphis Police Department, but also of his failure to pay his fines and costs and failure to report regularly to his probation officer. Moreover, the State presented evidence that on two occasions appellant tested positive for marijuana and cocaine and confessed to the use. The State need only prove that the appellant committed one violation of the conditions in order to revoke appellant's suspended sentence. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001); Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987). Here, there was sufficient evidence of more than one violation of the conditions of his probation.

It is a fundamental rule that the appellant is required to provide an abstract that contains information from the record necessary to an understanding of the questions presented to the court for decision. Hill v. State, 337 Ark. 219, 988 S.W.2d 487 (1999) (citing Richmond v. State, 326 Ark. 728, 934 S.W.2d 214 (1996)). Here, appellant has failed to abstract the conditions of his probation. However, the appellate court has the authority to go to the record to affirm a trial court's decision. See Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993); Turner v. State, 59 Ark. App. 249, 956 S.W.2d 870 (1997). Therefore, even though appellant failed to abstract the conditions of his probationary sentence, we reach the merits of his argument and find the trial court's revocation of appellant's probation was not clearly against a preponderance of the evidence.

Affirmed.

Bird and Vaught, JJ., agree.