Egger v. State

Cite as 2015 Ark. App. 471

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-1115

OPINION DELIVERED SEPTEMBER 16, 2015
DAVID C. EGGER
APPELLANT APPEAL FROM THE POLK
COUNTY CIRCUIT COURT
[NO. CR-2012-155-1]
V.
HONORABLE J.W. LOONEY, JUDGE

STATE OF ARKANSAS AFFIRMED
APPELLEE

ROBERT J. GLADWIN, Chief Judge

David C. Egger appeals the revocation of his probation in the Polk County Circuit

Court on September 8, 2014. He claims that the circuit court erred in finding that there was

a preponderance of evidence that he inexcusably failed to comply with a condition of his

probation. We affirm.

Egger pled guilty to two counts of forgery on April 10, 2013, and he was sentenced

to twenty-four months’ probation, subject to the following conditions: (1) payment of $1791

in fines and costs; (2) committing no offense punishable by imprisonment; (3) reporting to

the probation office on a regular basis; . . . (6) working faithfully at suitable employment; .

. . (8) obtaining permission from probation before moving his address; (9) submitting to

search; . . . (12) undergoing drug and alcohol treatment as directed; . . . (16) refraining from

using or possessing any scheduled controlled substance; . . . (20) performing eighty hours of

community service work for each twelve-month period of probation; . . . (24) paying a
Cite as 2015 Ark. App. 471

probation supervision fee of $25 per month. The State filed an amended petition for

revocation on August 20, 2014, alleging that Egger failed to comply with these provisions.

At the revocation hearing, Frank Gibson, a probation and parole agent for Arkansas

Community Correction, testified that he began supervising Egger on April 10, 2013. He said

that Egger had failed to make any payments on his fines and fees and that he had been

charged with residential burglary and second-degree sexual assault in July 2014. He stated

that Egger did not report as directed, failing to report for May, June, and July 2014. He

testified that Egger had not worked at suitable employment or reported employment to him

since September 2013. He said that Egger did not obtain permission to change his residence

or address and that, by not reporting where he was living, he had violated the condition that

he would submit to a search of his person, property, or residence.

Gibson explained that Egger was dismissed from substance-abuse treatment classes on

September 26, 2013, for failure to comply; thus, Egger violated the condition that requires

drug-and-alcohol counseling as directed. He stated that when Egger tested positive for

amphetamines on June 20, 2013; positive for amphetamines and marijuana on July 18, 2013;

and positive for amphetamines on August 15, 2013, he violated the condition that requires

probationers to refrain from the use of controlled substances. Gibson testified that Egger had

not completed his community service, as nothing had been “turned in” to reflect his service,

and had not paid his probation-supervision fee of $35 per month as required, having a

balance of $105 at the time of the hearing.

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Cite as 2015 Ark. App. 471

Haley Watts testified that she had been awakened in the night by Egger, who was

rubbing her back and then had his hand under her panties, touching her bottom. When she

jumped up from the couch, she saw that the door was open and she retrieved her father,

David Watt. She and her father found Egger in her bedroom, where she saw him with a

flashlight shined on his face. When her father began to hit him with the flashlight, Egger

said, “No, Dougass, it’s me, Chase.” She said her father chased him out the front door. She

stated that their electricity had been turned off at the electrical pole by someone other than

her parents.

David Watts testified that his daughter woke him, saying that somebody was in the

house and that “they touched [her].” He said that his wife found a flashlight, and he used

it to search the house. He found Egger behind the door in his daughter’s room. He said that

he had known Egger since Egger was five years old. He said that when he began hitting

Egger with the flashlight, Egger said, “No, Dougass, it’s me, Chase.” He said that he pushed

Egger down the hallway, and Egger ran out. He later discovered that the lights did not work

because somebody had cut the power off at the pole. He also discovered that his wife’s key

to the house was missing from her key chain and that things around his house had been

tampered with for about a week and half before the incident. He said that since Egger had

been arrested, there had been no more incidents at his home.

The circuit court revoked Egger’s probation and sentenced him to 120 months’

imprisonment in the Arkansas Department of Correction. A timely notice of appeal was filed

on September 30, 2014, and this appeal followed.

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Cite as 2015 Ark. App. 471

In a revocation proceeding, the trial court must find by a preponderance of the
evidence that the defendant has inexcusably failed to comply with a condition of his
or her suspension or probation, and on appellate review, we do not reverse the trial
court’s decision unless it is clearly against the preponderance of the evidence. Flemons
v. State, 2014 Ark. App. 131; Ark. Code Ann. § 16-93-308(d) (Supp. 2013). Because
the burdens are different, evidence that is insufficient for a criminal conviction may
be sufficient for a probation or suspended-sentence revocation. Bradley v. State, 347
Ark. 518, 65 S.W.3d 874 (2002). Since determination of a preponderance of the
evidence turns on questions of credibility and weight to be given testimony, we defer
to the trial court’s superior position. Id. Furthermore, the State need only prove that
the appellant committed one violation of the conditions in order to revoke appellant’s
sentence. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151.

Henderson v. State, 2015 Ark. App. 411, at 6–7, ___ S.W.3d ___, ___.

In arguing that the circuit court erred in finding by a preponderance of evidence that

Egger inexcusably failed to comply with a condition of his probation, Egger refutes the

findings regarding each condition. First, he contends that, even though Gibson stated that

Egger failed to pay his fines and costs, he also stated that there was a lot of unemployment

and that people cannot pay their fines and costs if they do not have any money. Egger then

reasons that Gibson’s remark could show that Egger did not inexcusably violate the

conditions to pay his fines and costs, report to the probation office, work faithfully at suitable

employment, perform eighty hours of community service, and pay his probation-supervision

fees if he did not have a job or money to do these things.

The State contends that, after it presented evidence of Egger’s failure to pay, the

burden shifted to him to provide a reasonable excuse for his failure. Trotter v. State, 2015

Ark. App. 408, ___ S.W.3d ___. The State maintains that the record is void of any

explanation by Egger for his noncompliance. We agree. Because Egger failed in his burden

of production on this point, we need not address Egger’s other arguments on appeal. The

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Cite as 2015 Ark. App. 471

State need only prove that the appellant committed one violation of the conditions in order

to revoke appellant’s probation. Henderson, supra. Accordingly, we affirm.

Affirmed.

WHITEAKER and HOOFMAN , JJ., agree.

Randy Rainwater, for appellant.

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

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