Taylor Butry-Weston v. State of Arkansas

Cite as 2021 Ark. App. 51
Elizabeth Perry ARKANSAS COURT OF APPEALS
I attest to the accuracy and
integrity of this document DIVISION I
2023.06.22 12:02:19 -05'00'
No. CR-19-709
2023.001.20174
Opinion Delivered: February 3, 2021

TAYLOR BUTRY-WESTON APPEAL FROM THE CRAWFORD
APPELLANT COUNTY CIRCUIT COURT
[NOS. 17CR-17-1114, 17CR-17-1216,
V. 17CR-17-1217, 17CR-17-238]

HONORABLE GARY COTTRELL,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED

KENNETH S. HIXSON, Judge

This is the second time this probation-revocation case has been before us. In the

first appeal, appellant Taylor Butry-Weston’s counsel filed a no-merit brief along with a

motion to withdraw as counsel. We remanded for supplementation of the record and

rebriefing because Taylor’s written conditions of probation were not contained in the

record. See Butry-Weston v. State, 2020 Ark. App. 340 (Butry-Weston I). The record has

now been supplemented with Taylor’s written conditions of probation, and the case has

returned to us in a merit format.

On appeal from the revocation of her probation, Taylor challenges the sufficiency of

the evidence supporting the revocation. Taylor also argues that the revocation petition

should have been dismissed because the arrest warrant was invalid. We affirm.
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. Rowton v. State, 2020 Ark.

App. 174, 598 S.W.3d 522. Since a 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. The State has the burden of proof but need only prove one violation.

Dawson v. State, 2015 Ark. App. 23.

On March 28, 2018, Taylor pleaded guilty to theft of property (credit or debit card),

fraudulent use of a credit or debit card, possession of drug paraphernalia, four counts of

second-degree forgery, and two counts of failure to appear. For these offenses, Taylor was

placed on three years’ probation.

On April 6, 2018, the State filed a petition to revoke Taylor’s probation, alleging

that she violated her conditions of probation by failing to comply with the rules and

regulations of drug court when she failed to report for intake and drug testing. After a

revocation hearing held on June 19, 2019, the trial court found that Taylor had violated her

conditions by failing to report for drug court after being notified of the prescribed dates and

times. On July 13, 2019, the trial court entered an order revoking Taylor’s probation and

sentencing her to six years in prison, and Taylor now appeals the order of revocation.

Taylor’s conditions of probation, which were contained in the record and

supplemented pursuant to our directive in Butry-Weston I, contained the following

provisions. Paragraph 6 of Taylor’s conditions of probation required her to report as

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directed to her supervising officer. Paragraph 9 required her to submit to any rehabilitative

program deemed necessary by her supervising officer.

Only two witnesses testified at the revocation hearing. These witnesses were Taylor’s

probation officer, Kayla Payton, and Taylor herself.

Officer Payton testified that after Taylor pleaded guilty on March 28, 2018, Payton

specifically advised Taylor of the schedule she had to meet pertaining to drug court. Officer

Payton testified that Taylor was directed in writing to report to probation for her intake on

March 30. According to Officer Payton, Taylor called that day and left a message that she

could not make it. Officer Payton then advised Taylor to report on April 2, but again,

Taylor did not appear. Officer Payton testified that she advised Taylor to report on April 3

and April 4 but that Taylor failed to report on those days as well. Officer Payton stated that

due to Taylor’s repeated failures to report for drug court, she was removed from the

program.

Appellant Taylor testified that when she pleaded guilty she was ordered by the trial

court to complete drug court. Taylor admitted that she did not even start the drug-court

program, much less complete it. Taylor did not dispute Office Payton’s testimony that she

was ordered to report on certain dates and failed to do so. Based on the testimony of Officer

Payton, Taylor, and the record before the trial court, the trial court revoked Taylor’s

probation.

On appeal, Taylor’s first argument is that there was insufficient evidence to support

her revocation. Although Taylor did not make a motion to dismiss based on insufficient

evidence at the close of the revocation hearing, she asserts that pursuant to Barbee v State,

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346 Ark. 185, 56 S.W.3d 370 (2001), a challenge to the sufficiency of the evidence may be

raised for the first time in an appeal of a revocation in the absence of a motion to dismiss.

Taylor’s argument has two prongs. She first argues that there was insufficient evidence to

support the revocation because the written conditions of her probation were not introduced

into evidence at the revocation hearing and were absent from the record until we ordered

supplementation in the first appeal. Taylor next argues that there was insufficient evidence

because, even if the written conditions were clearly identified, none of the conditions

explicitly required her to report for drug court on March 30 or on any other specific date.

We first address Taylor’s claim that the written conditions of probation were “absent”

from the record until we ordered supplementation. This is a mischaracterization. When

Taylor lodged her first appeal with this court, the conditions of probation were inadvertently

omitted from the appellate record. In Butry-Weston I, we remanded to settle and supplement

the record pursuant to Ark. R. App. P.–Civ. 6(e), which provides that if anything material

to either party is omitted from the record by error or accident, we may direct that the

omission be corrected, and if necessary, that a supplemental record be certified and

transmitted (made applicable to criminal cases by Ark. R. App. P.–Crim. 4(a)). After our

remand, the record was settled and supplemented as ordered. The supplemental record

contains Taylor’s written conditions of probation, which were signed by Taylor on March

28, 2018, and filed of record in the trial court on March 29, 2018. Therefore, appellant’s

argument is without merit. It is clear that the written conditions of probation were

contained in the trial court’s record at the time of the June 19, 2019, revocation hearing.

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We now turn to Taylor’s contention that her revocation should be reversed because

her conditions of probation were not formally introduced into evidence at the revocation

hearing. 1 As previously stated, although not formally introduced into evidence, the

conditions of her probation were part of the record before the trial court. Taylor couches

her argument as a challenge to the sufficiency of the evidence, which is an argument that

may be raised for the first time on appeal. See Barbee, supra. This court, however, has held

that an argument that the State failed to introduce a copy of the conditions of a probation

or a suspended sentence is a procedural objection that must be raised before the trial court.

Myers v. State, 2014 Ark. App. 720, 451 S.W.3d 588. Because Taylor never objected to the

State’s failure to introduce the conditions of her probation at the revocation hearing, this

argument is not preserved for review.

That does not end our inquiry because Taylor also contends that we should reach

the sufficiency-of-the-evidence argument pursuant to our decision in Scroggins v. State, 2012

Ark. App. 87, 389 S.W.3d 40. In Scroggins, at the revocation hearing, the State failed to

introduce the conditions of probation into evidence; however, Scroggins did not raise the

issue at the hearing. Scroggins’s probation was subsequently revoked for violating the

conditions of his probation. On appeal, Scroggins argued that the revocation should be

reversed because the State failed to introduce the conditions of probation. Our court

considered the merits of Scroggins’s challenge to the State’s failure to introduce the

conditions of Scroggins’s probation at the revocation hearing despite the fact that he had

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Taylor does not contend that she did not receive or was unaware of her conditions
of probation. Indeed, the record shows that, in signing her written conditions, Taylor
acknowledged that she had read them and understood them.
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not raised that specific argument below. The Scroggins court referred to the introduction of

the actual terms of probation “to be something of a procedural/sufficiency hybrid.” The

use of this phrase in Scroggins has ultimately resulted in confusion. If the alleged error on

appeal is the sufficiency of the evidence, then the error generally may be raised for the first

time on appeal. However, if the alleged error is procedural, then generally the error must

be raised below to be preserved for appeal. The Scroggins phrase “something of a

procedural/sufficiency hybrid” unnecessarily pits these two appellate principles against one

another. The Scroggins court affirmed Scroggins’s revocation, holding that as long as it is

clear from the record that the trial court knew the conditions of the defendant’s probation,

the fact that they were not formally introduced into evidence is not a failure of proof.

We decline Taylor’s invitation to reach the merits of her argument that her

revocation should be reversed for the failure to introduce the conditions of probation based

on Scroggins. In Myers, supra, we noted that Scroggins is the only reported Arkansas case to

use the “procedural/sufficiency hybrid” language, and we characterized Scroggins as

“somewhat of an outlier in our jurisprudence.” Since our court delivered Scroggins and used

the phrase “procedural/sufficiency hybrid,” we have steadfastly held that the failure to

introduce the conditions of probation is a procedural matter that must be raised before the

trial court to be preserved for review. See Dixon v. State, 2019 Ark. App. 412; Vangilder v.

State, 2018 Ark. App. 385, 555 S.W.3d 413; Myers, supra. Here, Taylor simply failed to

raise the procedural matter below, and it is not preserved for review.

Taylor attempts to somehow distinguish her case from Dixon and Vangilder because

her revocation was based on her failure to report as opposed to the commission of a new

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criminal offense. However, in both Dixon and Vangilder, the revocation was premised on

the appellant’s failure to report, and in both cases, we held that the argument that the State

failed to introduce the conditions is a procedural objection that was waived because it was

not raised below. In Dixon, we wrote:

Here, Dixon did not object below to the State’s failure to introduce the terms
and conditions of her probation or express any concerns about the circuit court’s
awareness of them. Citing Scroggins v. State, 2012 Ark. App. 87, 389 S.W.3d 40, she
characterizes her argument as a sufficiency challenge rather than a procedural issue to
avoid being barred from raising it in this appeal. Her reliance on Scroggins, however,
is misplaced. The Myers decision postdated Scoggins and clarified that the State’s
failure to introduce a copy of the terms and conditions at trial is a procedural issue
that must be raised before the circuit court. Dixon did not raise this procedural issue
below, and we will not address an issue on appeal that has not been properly
preserved.

Dixon, 2019 Ark. App. 412, at 2–3. Accordingly, in light of our settled caselaw, Taylor’s

failure to raise this issue below precludes our consideration of it on appeal.

Taylor next argues that because her written conditions did not explicitly include a

specific date or deadline by which to report to her probation officer for intake or drug court,

the evidence was insufficient to revoke her probation. However, we disagree.

Paragraph 6 of the conditions of Taylor’s probation required her to report as directed

to her supervising officer. Paragraph 9 required her to submit to any rehabilitative program

deemed necessary by her supervising officer. Taylor’s supervising probation officer testified

that she directed Taylor to report for intake to the drug-court program on multiple specific

dates and that Taylor failed to report altogether. And Taylor herself admitted that she failed

to begin, much less complete, the drug-court program. In light of this testimony, we

conclude that the trial court’s finding that Taylor inexcusably violated a condition of her

probation was not clearly against the preponderance of the evidence. See Henry v. State,
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2012 Ark. App. 235, 406 S.W.3d 6 (affirming revocation for violation of condition requiring

appellant to report to his probation officer as directed based on probation officer’s

testimony).

Taylor’s remaining argument is that the revocation petition should have been

dismissed because the arrest warrant was invalid. Taylor makes two different but related

arguments. First, she claims the service of the arrest warrant should be declared invalid

because the service of the warrant was unreasonably delayed in violation of Arkansas

Annotated section 5-1-109(f) (Supp. 2019). Second, Taylor claims that the arrest warrant

was stale when she was served. Taylor made these arguments at the revocation hearing, and

they were rejected by the trial court.

The record reflects that the State’s petition to revoke Taylor’s probation was filed on

April 6, 2018, and that an arrest warrant was issued for the probation violation three days

later on April 9, 2018. Taylor was thereafter incarcerated in the Arkansas Department of

Correction (ADC) on unrelated charges from June 27, 2018, until April 10, 2019. The

arrest warrant for the petition for revocation was subsequently served on Taylor on April

10, 2019, which was 366 days after the arrest warrant was issued.

Taylor argues that the 366-day period between the time the arrest warrant was issued

and served was an unreasonable delay that rendered the arrest warrant invalid. She relies on

Ark. Code Ann. § 5-1-109(f) (Supp. 2019), which provides:

A prosecution is commenced when an arrest warrant or other process is issued based
on an indictment, information, or other charging instrument if the arrest warrant or
other process is sought to be executed without unreasonable delay.

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(Emphasis added.) Taylor argues that because she was incarcerated in the ADC for more

than nine months while the revocation arrest warrant was pending, the State knew her

whereabouts and that the delay in serving the warrant was unreasonable.

In support of her argument, Taylor cites Richmond v. State, 326 Ark. 728, 934 S.W.2d

214 (1996), which is a revocation case that peripherally discussed Arkansas Code Annotated

section 5-1-109(f). However, a close reading of Richmond reveals that the supreme court

did not decide the case on the basis of section 5-1-109(f); instead, the revocation was

affirmed due to Richmond’s failure to abstract pertinent parts of the record. Specifically,

the Richmond court stated:

In sum, even were § 5-1-109(f) to apply to this situation, which is an issue we do
not reach today, Richardson’s abstract prevents us from deciding the issue of
reasonableness.

Richmond, 326 Ark. at 731, 934 S.W.2d at 216. Therefore, Taylor’s reliance on Richmond

is misplaced and her argument is unconvincing, and we will not consider arguments that are

unsupported by convincing argument or citation to relevant authority. See King v. State,

2016 Ark. App. 292, 494 S.W.3d 463.

Taylor’s second argument under this point is that the arrest warrant was stale when

served and therefore invalid. However, Taylor is mistaken. Again, Taylor’s reliance on

Richmond is misplaced. Arkansas Code Annotated section 16-93-308(d) (Supp. 2019)

provides:

(d) If a court finds by a preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her suspension of sentence or
probation, the court may revoke the suspension of sentence or probation at any time
prior to the expiration of the period of suspension of sentence or probation.

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(Emphasis added.) Taylor’s three-year probationary period began on March 28, 2018. The

arrest warrant was issued on April 9, 2018, and was served on April 10, 2019. The service

of the arrest warrant was clearly within the three-year probation period and in compliance

with Arkansas Annotated section 16-93-308(d). For these reasons, the trial court did not

err in denying Taylor’s motion to dismiss based on an allegedly invalid arrest warrant.

Affirmed.

ABRAMSON and VIRDEN, JJ., agree.

Jason A. Hutcheson, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.

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