ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION II

RANDY PHILLIPS

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-455

JANUARY 22, 2003

APPEAL FROM GARLAND COUNTY CIRCUIT COURT

[NO. CR00-551]

HONORABLE JOHN HOMER WRIGHT, CIRCUIT JUDGE

AFFIRMED

Appellant Randy Phillips pled guilty to theft by deception and was placed on six years' probation. The State filed an amended petition to revoke, alleging that Phillips had committed the offenses of aggravated robbery and burglary and that he had failed to report to his probation officer. After a hearing, the trial court granted the State's petition and revoked Phillips's probation, sentencing him to five years' imprisonment. On appeal, Phillips argues that (1) the trial court erred in denying his motion for directed verdict on the issue of failure to report for probation; (2) the trial court erred when it refused to take into consideration the affirmative defense of duress; (3) the statement taken by Detective Norris should have been suppressed due to the violation of Ark. R. Crim. P. 8.1; (4) the statement taken by Detective Tarbet should have been suppressed due to the violation of his right to counsel; and (5) the trial court erred by finding that he had violated the conditions of his probation because of the lack of sufficient evidence as to the alleged robbery and burglary. We affirm.

At the revocation hearing, Phillips's probation officer, Paula Ford, testified that her firstmeeting with Phillips occurred on July 10, 2001. At that meeting, Ford explained the rules and procedures for reporting. Specifically, Ford testified that she told Phillips that if he reported and she was unavailable, he should fill out a monthly report form that had her name and the date on it, because that is the only way to prove that he did report on that day. Ford stated that Phillips's first and only reporting date prior to his arrest on August 16, 2001, was scheduled for August 7, 2001, and she testified that she did not receive anything showing that he did in fact report, such as the monthly report form. Although Ford testified that she had a receipt in her file dated on August 6, 2001, for Phillips's monthly supervision fee, she stated that anyone could have paid that fee on behalf of Phillips and that it did not necessarily mean that Phillips reported that day.

The State also introduced into evidence three statements given by Phillips, in which he confessed to committing the offenses of aggravated robbery and burglary. Sheriff Larry Selig testified that he participated in the arrest of Phillips on August 16, 2001, for aggravated robbery, and that Phillips gave a statement to him voluntarily. In that statement, Selig testified that Phillips told him that he was addicted to crack cocaine and that he owed a crack dealer money. Phillips stated that this drug dealer, Chuck, wanted either money or guns and that he was threatened by him. According to Selig, Phillips stated that he had stolen guns from Trader Bill's and robbed the Clarion Inn because Chuck had threatened to kill him or his family.

Phillips also gave a statement to Detective Paul Norris on the morning of August 17, 2001, in which he again related that he committed the robbery and burglary because he was acting under duress from Chuck, to whom he owed money. Phillips gave a third statement to Detective DeWayne Tarbet on August 21, 2001. Tarbet testified that he was investigating the burglary and that Phillips admitted that he committed the burglary because he was afraid of Chuck. Based upon the evidence presented at the hearing, the trial court found by a preponderance of the evidence that Phillips hadviolated the conditions of his probation by not reporting to his probation officer, by committing an offense punishable by imprisonment, and by possessing a weapon.

In three separate points on appeal, Phillips challenges the trial court's findings that he inexcusably failed to report to his probation officer and that he committed aggravated robbery and burglary in violation of the conditions of his probation. Because all of these arguments address the sufficiency of the evidence to support the trial court's revocation of Phillips's probation, we address them together.

In order to revoke a defendant's probation, the trial court must find by a preponderance of the evidence that the defendant has inexcusably failed to comply with the conditions of his probation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). On appeal, we do not reverse the trial court's decision to revoke a defendant's probation unless it is clearly against the preponderance of the evidence. Id. The State need only prove a single violation of the conditions of probation to sustain a trial court's decision to revoke. Rudd v. State, 76 Ark. App. 121, 15 S.W.3d 699 (2000).

Although Phillips argues that there was insufficient evidence as to the robbery and burglary, the State introduced three statements by Phillips in which he admitted that he committed these offenses. Phillips contends that because he was acting under duress when he committed the offenses, he did not inexcusably violate the condition of his probation that he not commit an offense punishable by imprisonment. In his statements to police, Phillips stated that he committed the robbery and the burglary at the direction of a drug dealer, Chuck, to whom he owed money. Phillips stated that Chuck threatened to kill him or his family if he did not pay him the money. However, the trial court was not required to believe this self-serving evidence from Phillips, as he was the person most interested in the outcome of the proceeding. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999).

Also, the affirmative defense of duress is not available if the actor recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subjected to force or the threat of force. Ark. Code Ann. § 5-2-208(b) (Repl. 1997). In Meador v. State, 10 Ark. App. 325, 664 S.W.2d 878 (1984), the court held that a jury instruction, stating that the defendant could not claim the defense of duress if he recklessly placed himself in the situation, was proper where the defendant testified that he committed the robbery because he was under duress from persons to whom he owed money for drugs. Here, because he owed money to a drug dealer, Phillips recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subject to the threat of force. Thus, the trial court's finding that Phillips inexcusably violated the conditions of his probation by committing an offense punishable by imprisonment is supported by a preponderance of the evidence. Because only one violation of the conditions of a defendant's probation needs to be proven by the State, Rudd v. State, supra, we need not address Phillips's argument that there was insufficient evidence that he failed to report in August 2001 to his probation officer.

Phillips next argues that the statements taken by Detectives Norris and Tarbet should have been suppressed. As Phillips concedes, the exclusionary rule does not apply to revocation hearings, unless the probationer demonstrates some exception. McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). An exception may exist if the probationer can prove a lack of good faith by law-enforcement officers, that the officers' primary purpose was to seek revocation of the defendant's probation, that there was harassment by the police, or where the official misconduct shocks the conscience of the court. Id. Phillips argues that neither Detective Norris, nor Detective Tarbet, made a good-faith effort to comply with the law in obtaining his statements. However, because Phillips failed to object when these statements were introduced into evidence, his argument is not preserved for our review.

According to Swanigan v. State, 336 Ark. 285, 984 S.W.2d 799 (1999), where a defendant does not object on exclusionary rule grounds prior to the hearing or when the statement is entered into evidence, but waits to address it until his motion for dismissal, the issue of whether the evidence should have been suppressed is not preserved for appeal. Here, Phillips did not file a motion to suppress prior to the revocation hearing, and at the hearing, Phillips did not object when the statements were admitted into evidence. It was only during his motion for dismissal that Phillips argued that the statements should be suppressed. Thus, his argument is not preserved. Moreover, even assuming that the statements were erroneously admitted, the error was harmless because the information contained in those statements was cumulative to the information in the statement taken by Sheriff Selig, and Phillips did not object to the admission of this statement. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). The trial court's decision to revoke Phillips's probation is not clearly against the preponderance of the evidence, and we affirm.

Affirmed.

Gladwin and Neal, JJ., agree.