Charles Allen v. State of Arkansas

Cite as 2020 Ark. App. 84
ARKANSAS COURT OF APPEALS
Reason: I attest to the accuracy
and integrity of this document
Date: 2021-06-29 08:53:12 DIVISION IV
Foxit PhantomPDF Version: No. CR-19-645
9.7.5

Opinion Delivered February 5, 2020

CHARLES ALLEN APPEAL FROM THE CRAWFORD
COUNTY CIRCUIT COURT
APPELLANT [NOS. 17CR-11-540 AND 17CR-13-159]

V. HONORABLE GARY COTTRELL,
JUDGE

STATE OF ARKANSAS AFFIRMED

APPELLEE

LARRY D. VAUGHT, Judge

Charles Allen appeals the sentencing order entered by the Crawford County Circuit

Court convicting him of second-degree sexual assault and being a felon in possession of a

firearm. He was sentenced to seven years’ imprisonment on the former conviction and to six

years’ suspended imposition of sentence (SIS) on the latter, to run concurrently. On appeal,

Allen argues that the circuit court erred in finding that he violated the terms and conditions of

his SIS when it relied on Arkansas Crime Information Center (ACIC) documents that he

claims were admitted into evidence in violation of the Confrontation Clause. We affirm.

In 2012, Allen pled guilty to second-degree sexual assault in 17CR-11-540 and was

sentenced to ten years’ SIS. On March 27, 2013, the State petitioned to revoke Allen’s SIS

alleging that he committed two new offenses in 17CR-13-159: felon in possession of a firearm

and resisting arrest. Allen pled guilty to the two new offenses, and he was sentenced to six
years’ SIS. Based on Allen’s guilty plea of the offenses in 17CR-13-159, the court revoked

Allen’s SIS in 17CR-11-540 and entered an order on May 22, 2013, sentencing him to six years’

imprisonment and ten years’ SIS.

On April 15, 2019, the State filed a petition to revoke Allen’s SIS in 17CR-11-540 and

17CR-13-159, alleging that he violated the terms of his suspended sentences by committing

the new offense of failing to register as a sex offender. At the revocation hearing, the only

witness to testify was Deputy Rick Dahlem of the Crawford County Sheriff’s Department.

Dahlem testified that he registers and monitors the sex offenders in his jurisdiction and that

he maintains the registration records on those offenders. Dahlem stated that when a person is

released from the ADC, he or she has ten days to register as a sex offender with local law

enforcement.

Dahlem also testified that he received a phone call on April 5 advising that Allen was

living in Crawford County. Dahlem said he reviewed ACIC documents regarding Allen and

learned that he had been released from incarceration on March 25, 2019, and that Allen had

listed his new address as 1617 Gingerwood Lane, Alma, Arkansas. Dahlem stated that he went

to 1617 Gingerwood Lane on April 5 looking for Allen but did not find him. However,

Dahlem said that he spoke with a neighbor who lived next door to 1617 Gingerwood Lane

who said he had seen an elderly man1 at that address in the evenings. Finally, Dahlem testified

that because Allen had not registered as a sex offender within ten days of March 25, he was

1Allen’s bench warrants and sentencing orders reflect that he was sixty-eight years old

at the time.
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arrested by another officer on April 5, 2019—the eleventh day after his release—at the

Gingerwood Lane address.

When the State sought to introduce the ACIC documents Dahlem referred to during

his direct examination, counsel for Allen objected:

I don’t believe they’ve laid a foundation for their introduction; but that they’ve been
testified to relative to Officer Dahlem’s duties regarding registrationable [sic] cause; but
since they come from ACIC, I think they have to have someone here from ACIC to
confirm that those documents are what they are for introduction into evidence.

The circuit court instructed the State to lay a better foundation. Dahlem then testified that he

has access to documents from ACIC Censor, an online platform for sex-offender registration.

He said that he uses the ACIC site every time he registers a sex offender online. When the

State offered the ACIC documents a second time, counsel for defense raised the same

objection, and the circuit court overruled it.

The State rested, and Allen moved to dismiss the petition to revoke, arguing that the

State failed to present a prima facie case that Allen failed to register as a sex offender because

his residency at the Gingerwood Lane address or anywhere else had not been established. The

defense also renewed the objection to the introduction of the ACIC documents because there

was no one from ACIC at the hearing to verify the documents. Finally, counsel argued for the

first time that the ACIC documents are testimonial hearsay in violation of the Confrontation

Clause.

The circuit court denied the motion to dismiss, and the defense rested without

presenting any evidence. Thereafter, the court revoked Allen’s SIS in 17CR-11-540 and

17CR13-159 finding that he failed to timely register as a sex offender, and the court entered

the sentences previously stated. This appeal followed.
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Allen’s first argument on appeal is that the circuit court clearly erred in finding that he

violated the terms and conditions of his SIS. In a revocation hearing, the State has the burden

of proving a violation of a condition of probation or a suspended sentence by a preponderance

of the evidence. Mashburn v. State, 87 Ark. App. 89, 92, 189 S.W.3d 73, 74 (2004). On appeal,

we will uphold the circuit court’s findings unless they are clearly against the preponderance of

the evidence. Id., 189 S.W.3d at 74–75. We defer to the circuit court’s superior position for

questions of credibility and weight to be given to testimony. Id., 189 S.W.3d at 75. Evidence

that is insufficient for a criminal conviction may be sufficient for the revocation of probation

or a suspended sentence. Sims-Navarre v. State, 2010 Ark. App. 770, at 2. Circumstantial

evidence may be sufficient to warrant revocation. Id.

Arkansas Code Annotated section 12-12-904(a)(1)(A)(i), (ii) (Repl. 2016) provides that

a person is guilty of a Class C felony who fails to register or fails to report in person a change

of address as required under this subchapter. Section 12-12-907(b)(1)(A) further provides that

no later than ten calendar days after release from incarceration, a sex offender shall report in

person to the local law enforcement agency having jurisdiction and update the information in

the registration file.2 The failure to register is a strict-liability offense. Adkins v. State, 371 Ark.

159, 166, 264 S.W.3d 523, 527 (2007).

In the case at bar, the State presented testimony from Deputy Dahlem and documents

from the ACIC that Allen was released from incarceration on March 25, 2019, and had listed

2Effective July 24, 2019, the statute provides that a sex offender has five calendar days

after release from incarceration to report in person to the local law enforcement agency his or
her updated information. Ark. Code Ann. § 12-12-907(b)(1)(A) (Supp. 2019). The five-day
registration does not apply in this case because Allen’s revocation hearing was held on June 5,
2019.
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his new address as 1617 Gingerwood Lane in Alma. Within the ACIC documents is a form

entitled, “Sex Offender Acknowledgment Form,” which was signed by Allen and dated March

25, 2019, that advised of the ten-day registration requirement. Dahlem further testified that a

man who lived next door to 1617 Gingerwood Lane had reported seeing an elderly man at

that address in the evenings, that Allen had not registered as a sex offender as of April 4,

2019—ten days after his release, and that Allen was arrested at 1617 Gingerwood Lane on

April 5. In light of this evidence, we hold that the circuit court did not err in finding that Allen

violated the terms and conditions of his SIS by committing the new offense of failing to

register as a sex offender in violation of sections 12-12-904(a)(1)(A)(i), (ii) and 907(b)(1)(A).

Allen’s next argument on appeal is that the court abused its discretion in admitting the

ACIC documents in violation of the Confrontation Clause. However, Allen waived this

argument because it was not raised until after the documents had already been introduced into

evidence.

When the State sought to introduce the ACIC documents, the defense objected, but

the objection was that the State failed to lay a proper foundation for their introduction.

Specifically, the defense argued that someone from the ACIC was required to testify about the

information contained within the documents. The defense did not raise the Confrontation

Clause argument. The documents were introduced into evidence, Dahlem was cross-

examined, and the State rested. The defense moved to dismiss, and for the first time, the

Confrontation Clause argument was made.

The law is well settled that to preserve an issue for appeal, a defendant must object at

the first opportunity. Chunestudy v. State, 2012 Ark. 222, at 9, 408 S.W.3d 55, 61 (citing Holt v.

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State, 2011 Ark. 391, 384 S.W.3d 498; Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000)). A party

who does not object to the introduction of evidence at the first opportunity waives such

argument on appeal. Id. at 9, 408 S.W.3d at 61–62. We hold that Allen’s Confrontation Clause

argument is not properly before us because he did not raise it until after the evidence had

already been introduced, and the State had rested its case. Therefore, the issue is waived. Sims-

Navarre, 2010 Ark. App. 770, at 3–4 (holding that the appellant’s Confrontation Clause

argument, made for the first time in his closing argument, was waived). Accordingly, we affirm.

Affirmed.

KLAPPENBACH and HIXSON, JJ., agree.

Dusti Standridge, for appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.

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