Whitener v. State

Wendell L. Griffen, Judge, dissenting. The majority has

misapplied precedent regarding probation-revocation

proceedings in affirming this case. Appellant did not fail to preserve her sufficiency challenge for appellate review. However, the State failed to prove an essential element of its case. The decision announced today now compounds that error. Accordingly, I must respectfully dissent.

The majority acknowledges that it is unnecessary for a probationer to move for directed verdict or otherwise challenge the sufficiency of the evidence at trial to preserve the sufficiency argument for appellate review in a probation-revocation proceeding. See Barbee v. State, 346 Ark. 185 , 56 S.W.3d 370 (2001); Brown v. State, 85 Ark. App. 382 , 155 S.W.3d 22 (2004). Nevertheless, my colleagues fail to recognize that this is, indeed, a sufficiency challenge. Instead, they erroneously rely on Nelson v. State, 84 Ark. App. 373 , 141 S.W.3d 900 (2004). There, the appellant argued that his revocation should have been reversed due to the State’s failure to present proof that he received the written list of probation conditions. The appellant in Nelson acknowledged that he was bringing this argument for the first time on appeal, but argued that he was challenging the sufficiency of the evidence to revoke the probation, which was open for review. This court noted that the requirement that probationary conditions be given to the probationer was in place to avoid any misunderstandings by the probationer. It continued by holding that the requirement was a procedural issue, not a sufficiency issue, and was waived by the appellant’s failure to raise it to the trial court.

The issue presented in Nelson, however, is easily distinguished from the issue in the present case. Here, appellant is arguing that the State did not prove what the probation conditions were; thus, the trial court did not have proof sufficient to support a decision that her actions violated those conditions. This is plainly different from a claim that appellant did not know the terms and conditions of her probation. Nelson is inapplicable here. Appellant’s challenge is still a challenge to the sufficiency of the evidence, and no motion was necessary below to preserve the issue before this court.

The majority states, “Because our statutory law requires that every probationary sentence contain the condition that the probationer not violate the law, and because everyone is presumed to know the law, it was not necessary for the State to introduce into evidence the probationary condition that appellant not violate the law.” This statement is contrary to the result in Ross v. State, 268 Ark. 189 , 594 S.W.2d 852 (1980). There, the trial court revoked the appellant’s suspended sentence after the appellant committed battery and aggravated assault. The supreme court reversed the revocation because the trial court failed to expressly condition the suspended sentence on good behavior. The State argued that “good behavior is an implied condition of every suspension and need not be expressed in writing or otherwise since a person should be presumed to know that his suspended sentence is contingent upon his refraining from criminal conduct.” Id. at 190-91 , 594 S.W.2d 852 . In rejecting the argument, the supreme court stated:

[C]ourts have no power to imply and subsequently revoke conditions which were not expressly communicated in writing to a defendant as a condition of his suspended sentence. This result not only comports with any due process requirements owed to a defendant upon the imposition of a suspended sentence but may serve to deter criminal conduct which a defendant might otherwise commit but for a full appreciation of the extent of his jeopardy.

Id. at 191 , 594 S.W.2d at 853 .

Not only does Ross run counter to the majority’s reasoning, it explicitly holds that a probationer must violate an actual term of his or her probation before that probation can be revoked. Here, the State presented no evidence of the terms and conditions of appellant’s probation; therefore, the trial court had no evidence upon which it could find that appellant violated one of those terms.

We may institutionally “know” that the terms and conditions of probation typically include the obligation not to do certain acts. However, just as the State must prove each element of a crime before an accused can be convicted, the State must prove every element of a probation violation before a court can revoke a probation. A trial court cannot revoke a probation absent specific evidence of the terms and conditions of that probation, even if appellate judges “know” that certain behavior violates usual probationary terms. If the State fails to prove an essential element of its case, our proper duty is to say so and reverse, not manufacture devices whereby an unproved case can be affirmed.

Persons who face the loss of their liberty based on accusations of violating the terms and conditions of their probationary sentences are entitled to the same standard of justice that the law provides other litigants. The prosecution has the burden of proving each and every element of the offense, even when the standard of proof is by a preponderance of the evidence. Failure to prove the terms and conditions of probation is fatal to the prosecution’s case. The decision announced by the majority excuses the defect in this case. Furthermore, by doing so the majority unwisely and unfairly signals to prosecutors, defense counsel, and trial judges that institutional “knowledge” can substitute for proof in probation-revocation proceedings. Because the State failed to meet its burden in this case, I respectfully dissent.