Ryan v. State

Cite as 2016 Ark. App. 105

ARKANSAS COURT OF APPEALS DIVISION III No. CR-15-484

Opinion Delivered February 17, 2016

ZACK RYAN APPEAL FROM THE POLK COUNTY APPELLANT CIRCUIT COURT [NOS. CR-10-196, CR-10-197, CR-10-199]

V. HONORABLE JERRY RYAN, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Zack Ryan appeals the sentencing order entered by the Polk County

Circuit Court on February 9, 2015, revoking his probation and sentencing him to ten years’

imprisonment. On appeal he argues that (1) the trial court clearly erred in finding that he had

violated a condition of his probation, and (2) the trial court violated his right to confront his

accuser. We affirm.

On May 12, 2011, Ryan pled guilty to possession of a schedule VI controlled

substance with intent to deliver, delivery of a schedule III controlled substance, two counts

of use of a communication device, and delivery of a schedule IV controlled substance. He

received six years’ probation for each count, to run concurrently. On July 12, 2011, Ryan

pled guilty to possession of a schedule VI controlled substance and was sentenced to six

years’ probation, to run concurrent with his May 12, 2011 probation sentence.  Cite as 2016 Ark. App. 105

On June 11, 2014, the State filed a petition to revoke Ryan’s probation, alleging that

he had violated six conditions of probation: failure to lead a law-abiding life, failure to report

to his probation officer, failure to be truthful to his probation officer, failure to undergo

drug-and-alcohol treatment, failure to refrain from the use or possession of controlled

substances, and failure to refrain from the use or possession of alcohol.

A revocation hearing was held in January 2015. The only witness at the hearing was

Ryan’s initial probation officer, Vici Fenwick. She testified that she performed Ryan’s intake

in Polk County in May 2011. She said that in June 2011, Ryan requested that his probation

be transferred to the Malvern office in Hot Spring County and that the request was granted.

Fenwick further testified that she filed the violation report against Ryan in May 2014.

She stated that one condition of probation that Ryan allegedly violated was the requirement

to lead a law-abiding life and commit no offense punishable by imprisonment. She explained

that a Malvern probation officer contacted her in May 2014, advising that Ryan had been

arrested and charged in Hot Spring County with three counts of producing, directing, or

promoting a sexual performance by a child; three counts of distributing, possessing, or

viewing of a minor; sexual assault; possession of a schedule IV or V controlled substance;

and possession of drug paraphernalia. Fenwick testified that Ryan violated the condition of

his probation requiring him to report to his probation officer by failing to attend his

substance-abuse program on four occasions. She stated that he violated the condition of

probation that required him to be truthful to his probation officer by failing to be truthful to

his drug counselor. Fenwick said that Ryan violated a fourth condition of probation when he

failed to attend drug treatment. And she testified that Ryan violated two separate conditions

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of probation by testing positive for drugs on eleven occasions in 2013–14 and testing

positive twice for alcohol in 2013.1

At the conclusion of the hearing, the trial court found that Ryan had violated all six

of the conditions of probation and entered a sentencing order on February 9, 2015, revoking

Ryan’s probation. This appeal followed. 2

Ryan’s first argument on appeal is a challenge to the sufficiency of the evidence

supporting the revocation decision. The State must prove, by a preponderance of the

evidence, that Ryan violated a condition of probation. Lambert v. State, 2013 Ark. App. 64, at

3, 426 S.W.3d 478, 480. But it need only prove that a defendant violated one probationary

term or condition before a trial court may revoke probation. Id., 426 S.W.3d at 480. We will

not reverse the trial court’s findings unless they are clearly against the preponderance of the

evidence. Id., 426 S.W.3d at 480. Evidence that would not support a criminal conviction in

the first instance may be enough to revoke probation or a suspended sentence. Id., 426

S.W.3d at 480. Determining whether a preponderance of the evidence exists turns on

questions of credibility and weight to be given to the testimony; so we defer to the trial

court’s superior position when it comes to assessing a witness’s believability. Id., 426 S.W.3d

at 480.

Fenwick stated that Ryan tested positive for controlled substances in February 2013, 1

May 2013, three times in July 2013, four times in August 2013, March 2014, and May 2014. She said that he tested positive for alcohol in July and October 2013.

This is Ryan’s second attempt to appeal his case. In Ryan v. State, 2015 Ark. App. 2

632, we remanded the case to settle and supplement the record and ordered rebriefing due to abstract and addendum deficiencies. These deficiencies have been corrected. 3  Cite as 2016 Ark. App. 105

Ryan contends that the trial court clearly erred in concluding that he violated his

probationary conditions. He contends that the State’s evidence that he committed new

offenses in May 2014 was based solely on the hearsay testimony offered by Fenwick. He

argues that the State did not introduce any physical evidence, police reports, or court

documents to support the new charges. He contends that evidence of his failure to report to

his substance-abuse program does not establish that he failed to report to his probation

officer. Likewise, he argues that failing to be truthful to his drug counselor does not establish

that he failed to be truthful to his probation officer. Ryan argues that evidence of his failure

to attend the substance-abuse program did not establish that he failed to undergo available

drug/alcohol treatment as directed by the probation officer. And Ryan counters Fenwick’s

testimony about his positive drug-and-alcohol tests by pointing out that she did not know if

he had offered any excuses as to why he tested positive for alcohol and drugs and that she

did not know if he had been offered rehabilitation that would have helped him.

While the trial court found that the State proved by a preponderance of the evidence

that Ryan had violated six conditions of his probation, only one violation is required.

Lambert, 2013 Ark. App. 64, at 3, 426 S.W.3d at 480. Fenwick testified that Ryan tested

positive for drugs and alcohol numerous times. The Arkansas Community Correction Adult

Probation Officer’s Affidavit, the Arkansas Community Correction Violation Report, the

probation-officer supervision-contact notes, and the drug-test results were admitted into

evidence without objection and confirm Fenwick’s testimony that Ryan tested positive for

drugs and alcohol on numerous occasions. Therefore, based on the evidence supporting

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these two violations, we hold that the trial court’s revocation decision was not clearly against

the preponderance of the evidence. 3

Ryan next contends that the trial court committed reversible error by allowing out-of-

court statements of a Malvern probation officer into evidence in violation of the

Confrontation Clause. Ryan points out that the trial court failed to make a good-cause

finding for not allowing confrontation.

Although in a revocation hearing a defendant is not entitled to the full panoply of

rights that attend a criminal prosecution, he is entitled to due process. Goforth v. State, 27 Ark.

App. 150, 152, 767 S.W.2d 537, 538 (1989). The United States Supreme Court has held that

in a revocation proceeding the accused is entitled to “the right to confront and cross-

examine adverse witnesses (unless the hearing officer specifically finds good cause for not

allowing confrontation).” Id., 767 S.W.2d at 538 (citing Gagnon v. Scarpelli, 411 U.S. 778, 786

(1973)). This holding is codified at Arkansas Code Annotated section 16-93-307(c)(1), (2)

(Supp. 2015), which states that the defendant has the right to counsel and to confront and

cross-examine an adverse witness unless the court specifically finds good cause for not

allowing confrontation.

3 Under his sufficiency-of-the-evidence argument, Ryan also argues that the trial court’s revocation decision should be reversed because it failed to comply with Arkansas Code Annotated section 16-93-307(b)(5). Section 16-93-307(b)(5) provides in pertinent part that after a revocation hearing, if probation is revoked, the court shall prepare and furnish to the defendant a written statement of the evidence relied on and the reasons for revoking probation. Ark. Code Ann. § 16-93-307(b)(5) (Supp. 2015). Because Ryan did not raise this issue below, we do not address the argument. Massey v. State, 2015 Ark. App. 240, at 3–4; see also Brandon v. State, 300 Ark. 32, 776 S.W.2d 345 (1989); Love v. State, 2012 Ark. App. 600; Dooly v. State, 2010 Ark. App. 591, 377 S.W.3d 471. 5  Cite as 2016 Ark. App. 105

In a probation-revocation proceeding the trial court must balance the probationer’s

right to confront witnesses against grounds asserted by the State for not requiring

confrontation. Id., 767 S.W.2d at 538 (citing United States v. Bell, 785 F.2d 640 (8th Cir.

1986)). First, the court should assess the explanation the State offers of why confrontation is

undesirable or impractical. Id., 767 S.W.2d at 538. A second factor that must be considered,

and one that has been focused on by a number of courts, is the reliability of the evidence

that the government offers in place of live testimony. Id., 767 S.W.2d at 538.

Ryan is correct that the trial court violated his right to confront the Malvern

probation officer. When Ryan objected to Fenwick’s testimony about what the Malvern

probation officer had told her about Ryan’s arrest on the new charges, the trial court

overruled the objection without further comment. The trial court did not require the State to

explain why the Malvern probation officer was absent from the hearing, and the trial court

did not make a good-cause finding for not allowing confrontation.

However, trial error involving the Sixth Amendment right to confront adverse

witnesses is subject to a harmless-error analysis. Green v. State, 2015 Ark. App. 291, at 5, 461

S.W.3d 731, 734. Whether a Confrontation Clause violation is harmless error depends on a

variety of factors, including the importance of the witness’s testimony in the State’s case,

whether the testimony was cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the extent of cross-

examination otherwise permitted, and the overall strength of the State’s case. Id., 461 S.W.3d

at 734 (citing Delaware v. Van Arsdall, 475 U.S. 673 (1986); Andrews v. State, 344 Ark. 606, 42

S.W.3d 484 (2001)).

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In Green, our court affirmed the trial court’s revocation decision despite its error in

permitting an out-of-court statement in violation of the defendant’s right to confront

witnesses. We held that the error was harmless because there was other evidence that

supported the revocation, rendering the out-of-court statement unnecessary. Id. at 5, 461

S.W.3d at 734; see also Roston v. State, 362 Ark. 408, 410, 208 S.W.3d 759, 761 (2005) (holding

that the trial court’s violation of the Confrontation Clause was harmless error because other

evidence supported the trial court’s revocation decision).

In the present case, the trial court’s error in admitting the out-of-court statement of

the Malvern probation officer, in violation of the Confrontation Clause, was harmless. As

noted by the trial court at the conclusion of the hearing, revocation was warranted if all of

the evidence relating to the 2015 charges was “completely ignored.” This is because evidence

regarding the new charges filed against Ryan was not necessary to prove the State’s case for

revocation. Fenwick testified that Ryan had violated two other conditions of his probation

by testing positive for drugs and alcohol numerous times. Documentary evidence admitted

into evidence supports these two violations as well. Therefore, the admission of the out-of-

court statements of the Malvern probation officer was harmless error.

Affirmed.

HOOFMAN and BROWN, JJ., agree.

Randy Rainwater, for appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., and Courtney Holt, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen., for appellee.

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