Ware v. State

Cite as 2016 Ark. App. 284

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-1003

TIA WARE Opinion Delivered May 25, 2016
APPELLANT
APPEAL FROM THE CRAIGHEAD
V. COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. CR-2012-1274]
STATE OF ARKANSAS
APPELLEE HONORABLE THOMAS E.
FOWLER, JUDGE

AFFIRMED

RITA W. GRUBER, Judge

On January 28, 2013, Tia Ware was sentenced by the Circuit Court of Craighead

County to sixty months’ probation after pleading guilty to delivery of a controlled substance

(amphetamine). The State later filed a petition and an amended petition to revoke, alleging

that Ware had violated various conditions of the probation. At a September 28, 2015

revocation hearing, the circuit court revoked Ware’s probation upon finding that she had

inexcusably violated conditions. She was sentenced to twenty-four months’ probation with

twelve months to be spent in a Community Correction Center and was ordered to pay $50

a month toward previously imposed court costs, fines, and fees until fully paid.1 She appeals

1
If a court suspends the imposition of sentence or places a defendant on probation, the
court may require confinement to a facility in the Department of Community Correction
as a condition of its order, with the period actually spent in confinement not to exceed 365
days. Ark. Code Ann. § 5-4-304(a), (c)(1)(B) (Repl. 2013).
Cite as 2016 Ark. App. 284

the resultant sentencing order, contending that the circuit court erred in revoking her

probation because there was insufficient evidence that she inexcusably failed to abide by

conditions. We affirm.

In revocation proceedings, the circuit court must find by a preponderance of the

evidence that the defendant has inexcusably violated a condition of probation. Ark. Code

Ann. § 16-93-308(d) (Supp. 2015). Evidence that is insufficient for a conviction may be

sufficient to revoke probation, which requires a lower burden of proof. Lewis v. State, 2016

Ark. App. 101, at 2, ___ S.W.3d ___, ___. A circuit court’s finding in revocation

proceedings will not be reversed on appeal unless it is clearly against the preponderance of the

evidence. Id. Because the preponderance of the evidence turns on questions of credibility

and weight to be given testimony, we defer to the superior position of the trial court to

decide these matters. Id.

The circuit court noted that the conditions of Ware’s probation required that she make

payments toward her fines, not use controlled substances, and abide by rules and orders of the

probation office. Speaking from the bench, the court announced its findings and pronounced

sentence:

I noted that in your testimony, you admitted that you missed a couple of
meetings and while I don’t like that, that does not concern me as much as your
continued use of THC. I noted that your attorney did the best that she could to
defend you and your responses to her were to make light of the drug usage while you
were pregnant.

I note that the State has met its burden today by a preponderance of the
evidence and that you have violated the terms and conditions of your probation and
find you guilty of violation of probation. I have in mind to give you the twelve
months in the Community Correctional Center as a condition of probation so that

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Cite as 2016 Ark. App. 284

you will have the nine months to go into the program there. This will be a condition
of 24 month’s probation.

The following evidence supports a finding that Ware violated conditions regarding use of

controlled substances and payment of fees and fines.

Tammy Hubble of the Craighead County Sheriff’s Office testified that Ware had made

only one $20 payment toward the original fines and costs of $1231, which had increased to

$1361 because of a $10 monthly fee added to unpaid balances. Amanda Marsh, Ware’s

probation officer, testified that Ware was $220 behind on required monthly supervision fees

of $35; she had tested positive for amphetamines, “benzos,” and THC in January 2015; in

May 2015, she had admitted using THC; she had been positive for opiates in August 2015

and had given birth that month; she had been put on a waiting list for a drug program or

counseling, but there were no openings; and she had confessed on the day of the hearing to

using THC. Ware testified that no one had talked to her about counseling, she had been

pregnant with her sixth child when she used THC, and her positive opiate test was a result

of a postpartum prescription given to her. She did not produce evidence of the prescription

at the hearing.

We note that the State need show that the defendant committed only one violation

in order to sustain a revocation. Lewis v. State, supra. Ware argues on appeal that her failure

to comply with conditions of her probation was not inexcusable, pointing in relevant part to

her testimony that she was not offered rehabilitative services and to her probation officer’s

testimony that she was awaiting services. Ware cites no authority that the State was required

to offer a drug program or counseling. We cannot say that the circuit court clearly erred in

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Cite as 2016 Ark. App. 284

finding by a preponderance of the evidence that she inexcusably violated conditions of her

probation by using illicit drugs.

Affirmed.

GLADWIN, C.J., and KINARD, J., agree.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.

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