Ferguson v. State

Cite as 2016 Ark. App. 4

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-400

Opinion Delivered January 6, 2016
JOBETH FERGUSON
APPELLANT APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[NO. CR-2014-720]
V.
HONORABLE JOHN N.
FOGLEMAN, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

M. MICHAEL KINARD, Judge

JoBeth Ferguson appeals from the revocation of her suspended imposition of sentence

and probation, which were previously ordered following her guilty pleas to charges of

possession of drug paraphernalia and possession of a controlled substance. She challenges the

sufficiency of the evidence to support the trial court’s findings that she inexcusably violated

the conditions of her suspension and probation. We affirm.

Appellant pled guilty in August 2014 to felony charges of possession of drug

paraphernalia and possession of a controlled substance (methamphetamine). She was fined

$1000 and ordered to pay the fine and various fees and costs totaling an additional $875 in

monthly installments of $50 beginning in September 2014. Imposition of any sentence to

imprisonment for the paraphernalia count was suspended for five years on various conditions,

including that she pay the ordered fine, costs, and fees. For the methamphetamine count,

she was placed on supervised probation for five years subject to the same terms regarding
Cite as 2016 Ark. App. 4

payment of the fine, costs, and fees, and the additional requirement that she cooperate with

and report as directed to a probation officer. In October 2014, the State filed a petition to

revoke appellant’s suspension and probation alleging, inter alia, that she had failed to make

any payments toward the ordered amounts or to report to or otherwise contact her probation

officer as directed. After a hearing, the trial court found that appellant had violated both of

these conditions, and it revoked appellant’s suspension and probation. She was sentenced to

four years in the Arkansas Department of Correction for the methamphetamine conviction;

imposition of any sentence to imprisonment for the paraphernalia conviction was suspended

for a period of five years.

In order to revoke a suspension or probation, the circuit court must find by a

preponderance of the evidence that the defendant inexcusably failed to comply with a

condition of that suspension or probation. Ark. Code Ann. § 16-93-308(d) (Supp. 2015).

The burden of proving that the defendant violated the terms of her suspension or probation

is on the State. Trotter v. State, 2015 Ark. App. 408, 465 S.W.3d 860. Only one violation

need be shown in order to justify revocation. Id. When the basis for revocation is the failure

to make payments as ordered, it is the State’s burden to prove that such failure to pay was

inexcusable. Suggs v. State, 2015 Ark. App. 10. Once the State introduces evidence of

nonpayment, however, the burden of production shifts to the defendant to go forward with

evidence of a reasonable excuse for failing to make the payments. Peals v. State, 2015 Ark.

App. 1, 453 S.W.3d 151. Nevertheless, the State shoulders the ultimate burden of proving

that the failure to pay was inexcusable. Stillwell v. State, 2010 Ark. App. 546.

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On appeal, we will not reverse the trial court’s decision to revoke unless it is clearly

erroneous, or clearly against the preponderance of the evidence. Trotter, supra. This court

defers to the superior position of the trial court to determine questions of credibility and the

weight to be given the evidence. Dotson v. State, 2014 Ark. App. 456.

Here, the State presented testimony from Ms. Amy Peyton, collector of fines and costs

for the Crittenden County Sheriff’s Department. She testified that appellant was assessed a

$1000 fine and $875 in costs associated with her two guilty pleas. Ms. Peyton further stated

that appellant had been ordered to pay the fine and costs at the rate of $50 per month

beginning in September 2014. She testified that, as of the January 9, 2015, hearing on the

petition to revoke, appellant had made no payments and had not contacted Ms. Peyton’s

office. The State also presented testimony from Ms. Jakirby Evans, appellant’s probation

officer. Ms. Evans stated that appellant failed to report as directed on September 2, 9, and

22. While appellant claimed that she had no transportation to the meetings, Ms. Evans

testified that a free, public-transportation bus system was available to take appellant to and

from the probation office. Ms. Evans further testified that appellant owed $70 in supervision

fees but had made no payments toward that obligation.

Appellant testified in her own defense. She admitted that she had not reported to her

probation officer or made any payments on her fine and fees. She sought to excuse her

failure to report on a lack of transportation from her home in Memphis, Tennessee, to the

probation office in West Memphis, Arkansas. However, she admitted that she knew that the

public bus ran from Memphis to West Memphis and stated, “I don’t have an excuse for why

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I wouldn’t ride the bus.” Regarding the failure to make any payments on her fine and fees,

appellant claimed that she was unemployed and had been incarcerated in Memphis on other

charges for much of the time between her August 2014 guilty pleas and mid-November

2014. However, she admitted that, at the time of her pleas, she had a standing offer to go

to work for her sister but that she never called her sister to make the final arrangements.

Appellant further admitted that she had received $25,000 in life-insurance proceeds in the

spring of 2014, that she put $14,000 of those funds into her bank accounts, and that she did

not use that money to pay her fine or fees. While appellant stated that, at some point after

her guilty pleas, those accounts had been “frozen” by the bank, she had no paperwork or

other information to corroborate her statements.

Without objection, the court had its bailiff contact authorities in Memphis to verify

whether appellant had been incarcerated there and, if so, for how long. After doing so, the

bailiff reported on the record, again without objection, that appellant had actually spent less

than two weeks in jail in Memphis, from early to mid-November.

Appellant contends that the trial court’s findings that she inexcusably violated the

conditions of her probation and suspension are not supported by the evidence. We cannot

agree. Appellant admitted that she did not comply with the conditions of her release. She

had access to $14,000 at the time that she was placed on probation and suspension, but she

did not use the funds to make any payments toward her obligations. She also had a certain

employment opportunity but did not take advantage of it. Moreover, the court had

evidence that appellant substantially overstated the amount of time that she was incarcerated

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in Memphis, and appellant offered nothing to support her self-serving testimony that her

bank accounts had been frozen. While the State retained the ultimate burden of showing

that appellant’s violations were inexcusable, it is also true that the court was not required to

believe appellant’s testimony. Dotson v. State, 2014 Ark. App. 456. From our review of the

record, and deferring to the trial court’s superior position to determine witness credibility,

we cannot conclude that the court clearly erred in finding that appellant inexcusably failed

to make her court-ordered payments. Under these circumstances, we need not discuss the

other violation found by the trial court.

Affirmed.

HARRISON and HOOFMAN , JJ., agree.

Tyler Ginn, for appellant.

Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.

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