ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION I

GENTRY ALAN RAINWATER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1193

June 18, 2003

APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT

[NO. CR-2000-238-A]

HON. FLOYD "PETE" ROGERS,

JUDGE

AFFIRMED

On May 21, 2001, Gentry Alan Rainwater pleaded guilty to possession of methamphetamine, and the Crawford County Circuit Court suspended imposition of a ten-year sentence. On July 22, 2002, the State filed a petition to revoke alleging that he had violated the terms and conditions of his suspended sentence by committing domestic battery, being involved in a hit-and-run accident, failing to report to his probation officer, and failing to attend rehabilitation meetings as ordered. The trial court found that appellant had violated the terms and conditions of his suspended sentence and sentenced him to three years' imprisonment with seven years suspended. In addition, the trial court ordered appellant to pay $500 in restitution to the hit-and-run victim. Appellant raises three points on appeal to this court: (1) he was denied his Fourteenth Amendment right to due process when the trial judge failed to recuse himself for bias; (2) he was denied his Sixth Amendment right toconfront witnesses against him when the trial judge refused to allow him to impeach the alleged battery victim; and (3) the evidence was insufficient to support a finding that he had violated the terms and conditions of his suspended sentence. We affirm.

At the probation revocation hearing, Denise Robinson testified that on July 8, 2002, appellant made a left turn in his vehicle, which caused her vehicle to collide with his. She stated that appellant drove away without stopping. Robinson testified that she was uninjured but that there was damage to her car totaling $1,154.81. On direct examination, Robinson testified that her deductible was $100, but on redirect examination, she stated that it was $500.

Officer Ron Sivils of the Fort Smith Police Department testified that he responded to the hit-and-run accident. After taking Robinson's report, which included appellant's license plate number secured by the victim and a witness, he ran the information through NCIC and acquired appellant's address. He was on his way to the address when he encountered appellant's vehicle. He stopped appellant and told him he was investigating a hit-and-run accident. According to Officer Sivils, appellant responded that he was not aware that an accident had occurred. Officer Sivils noticed that damage to appellant's vehicle corresponded to the information Robinson had provided regarding the way in which the accident had occurred. On cross-examination, Officer Sivils stated that there were no skid marks and no debris, which indicated that it was not a serious accident.

Wanda Rainwater, appellant's wife, testified that she witnessed the accident between appellant and Robinson. She stated that they collided at the intersection and that appellantwent on his way. Mrs. Rainwater testified that she was not sure that appellant knew what had happened. Mrs. Rainwater then testified about an incident that she claimed happened a month later. She said that she and appellant got into a fight because appellant had come home drunk. She stated that appellant pushed her to get her off of him and that she fell and bruised her leg. Mrs. Rainwater acknowledged that she had signed a statement to the effect that the bruise on her leg was caused by appellant's kicking her. She explained that she gave the statement in an attempt to get her husband into treatment. She testified that, "I was told that if Gentry was arrested on an alcohol related charge, I could get him into treatment."

On cross-examination of Mrs. Rainwater, defense counsel asked, "What did the probation department tell you that would have to happen before ..." At that point, the prosecutor objected without stating his grounds, and the court sustained the objection. Defense counsel averred that the testimony he sought to elicit was not hearsay. The court held firm in sustaining the objection. Defense counsel attempted to reword his question, and the State again objected without stating any grounds. The court sustained the objection. Defense counsel then proffered the testimony. He said, "The witness would say that based upon what the probation department had told her that she had told the probation officer that Gentry had kicked her in order for him to get inhouse treatment at Harbor View or outpatient treatment at Harbor View."

Deloris Biocic, appellant's former probation officer, testified that Mrs. Rainwater had come into her office a few days following the hit-and-run accident complaining that appellant had beaten her. Biocic explained that Mrs. Rainwater had confronted appellantabout the accident and that they had fought about it. Biocic testified that she took a statement from Mrs. Rainwater and took pictures of her injuries, both of which were introduced into evidence at the hearing.

T.R. Lowrance, appellant's probation officer at the time of the hearing, testified that he was scheduled to see appellant every third month in person but that appellant would turn in a monthly report. Lowrance stated that appellant turned in his July report late. He also testified that he had set up an appointment for appellant to talk to a mental health counselor so that he could attend AA meetings. Lowrance stated that appellant met with the counselor but then failed to attend the AA meetings. Lowrance stated that he had several conversations with Mrs. Rainwater and that he had indicated to her that until there was a criminal offense he could not put appellant into Harbor View for treatment.

Appellant testified that on July 8, 2002, he probably should have yielded because he saw Robinson's car coming when he made the left turn. He stated, however, that he did not feel their cars hit. He explained that his Chevy Blazer had big tires and "drives rough anyway." As for the AA meetings, appellant stated that he has the AIDS virus and had been working in the heat so that he was "pretty well out of it" when it was time for the meetings. Although it is listed as appellant's third point on appeal, we consider the sufficiency of the evidence prior to addressing other alleged trial errors. See Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). We do so in order to preserve a defendant's right to freedom from double jeopardy. Id.

To revoke probation or a suspension, the burden is on the State to prove the violation of a condition of that probation or suspension by a preponderance of the evidence. See Ark. Code Ann. § 5-4-309 (Supp. 2001); Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended sentence revocation. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Thus, the burden on the State is not as great in a revocation hearing. Id. 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 v. State, 347 Ark. 518, 65 S.W.3d 874 (2002).

Appellant argues that an allegation of mere involvement in the hit-and-run accident did not constitute grounds to revoke his suspended sentence. Appellant argues that, at best, the evidence on the issue of the hit-and-run accident was "equipoised," and it is just as likely that he was unaware, as aware, of the accident and that, therefore, he did not knowingly fail to stop following the accident. As for the allegation that he committed battery, he argues that Mrs. Rainwater testified that she had misrepresented the facts for the purpose of obtaining treatment for her husband. Appellant contends that Biocic was not present during the altercation between him and his wife and that she testified only to the statement, which Mrs. Rainwater repudiated. He argues that Lowrance admitted that appellant had turned in his July report but that it was late. Finally, appellant argues that having the AIDS virushampered his energy to attend meetings in the past but that he regularly attends NA meetings now and is in outpatient treatment.

We cannot say that the trial court's finding that appellant had violated the terms and conditions of his suspended sentence was clearly against the preponderance of the evidence. It was implicit in the trial court's ruling that he found that appellant was involved in the hit-and-run accident because he ordered appellant to pay restitution to the victim. The trial judge was not required to believe appellant's testimony that he was unaware that an accident had occurred, especially in light of the fact that he was the one most interested in the outcome. See Scott v. State, 27 Ark. App. 1, 764 S.W.2d 625 (1989). Because the State had to prove only one violation, we need not address the other potential bases for revocation.

Appellant argues that the trial judge should have recused because of his bias against the public defender.1 Appellant contends that the trial judge's bias was obvious in his evidentiary rulings as well in that the prosecutor did not express his reasons for objecting before the trial judge made his rulings in "a knee-jerk reaction" sustaining the objections against appellant. Appellant contends that the trial judge was also biased in fixing the amount of restitution when there was an obvious discrepancy regarding the victim's insurance deductible. Appellant did not make any of these arguments below, did not at any time ask the trial judge to recuse, and did not make any motions after the hearing in thisregard. We will not address an argument that was not presented to the trial court for consideration. Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).

Finally, appellant argues that the trial court denied him his constitutional right to confront witnesses against him. He argues that he was prevented from inquiring into the details of what the probation department actually told Mrs. Rainwater, who told her, and when. He argues that he was, thus, prevented from developing testimony for impeachment of either Mrs. Rainwater or her sources of information. This issue is raised for the first time on appeal. At the hearing, appellant reasoned that the information should be admitted because it was not hearsay. This was not sufficient to raise the confrontation issue. See Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983). This court has repeatedly stated that we will not address any claims, even constitutional claims, raised for the first time on appeal. McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997).

Affirmed.

Robbins and Neal, JJ., agree.

1 Following the revocation hearing, the trial judge entered an order of suspension against the public defender that was later overturned by the Arkansas Supreme Court.