Rimmer v. State

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                  ARKANSAS COURT OF APPEALS
                                          DIVISION I
                                         No. CR-13-222


                                                    Opinion Delivered October 29, 2014

MARCUS A. RIMMER                                    APPEAL FROM THE CRITTENDEN
                                 APPELLANT          COUNTY CIRCUIT COURT
                                                    [NO. CR-2011-210]
V.
                                                    HONORABLE JOHN N.
                                                    FOGLEMAN, JUDGE
STATE OF ARKANSAS
                                   APPELLEE         AFFIRMED



                                 ROBIN F. WYNNE, Judge


       Marcus A. Rimmer appeals from the Crittenden County Circuit Court’s revocation

of his probation. This is the second time this appeal has been before us. We previously held

that appellant’s counsel had failed to comply with Arkansas Supreme Court Rule 4-3(k),

denied counsel’s motion to withdraw, and ordered rebriefing. Rimmer v. State, 

. Appellant’s new counsel has now submitted a brief in merit form. We affirm the

revocation.

       In August 2011, appellant pled guilty to possession of pseudoephedrine with intent to

manufacture methamphetamine and was sentenced to two years’ probation. On April 9,

2012, the State filed a petition to revoke appellant’s probation, alleging that he violated the

terms of his probation by 1) failing to pay fines, fees, and costs as directed; 2) failing to report

to probation as directed; 3) failing to pay probation fees; 4) failing to notify the sheriff and his
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probation officer of his address and employment; and 5) departure from his approved

residence without permission.

       At the hearing on the State’s petition to revoke, April Thomas with the Department

of Community Correction testified that appellant reported as directed until November 16,

2011, after which he did not report. She attempted to reach appellant by telephone on

February 14, 2012, but was unsuccessful. She sent him a letter on February 14, advising him

to report on February 22, 2012, and he failed to show. Ms. Thomas tried again to reach

appellant by telephone on February 24, 2012, and was again unsuccessful. Appellant, who

was living in Memphis, testified that he failed to report because he could not get

transportation and had no money to pay for a ride due to lack of work. He had last worked

at Burger King from the end of November 2011 until the beginning of December 2011. He

was also the sole caregiver for his two children. Appellant stated that he did pay someone for

a ride in October 2011 and November 2011. Appellant was unaware of a bus that ran

between Memphis and West Memphis.

       The trial court revoked appellant’s probation based on his failure to report to his

probation officer as directed. He was sentenced to thirty-six months’ imprisonment. This

appeal followed.

       In a hearing to revoke probation, the State must prove by a preponderance of the

evidence that the defendant inexcusably violated a condition of his probation. 

(d) (Supp. 2013). The State need only prove that the defendant committed

one violation of the conditions. Hill v. State, 

. We will reverse an order


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of revocation only if the trial court’s findings are clearly against the preponderance of the

evidence. 

 We defer to the trial court’s superior opportunity to assess the credibility of the

witnesses in determining where the preponderance of the evidence lies. 

       Appellant argues that the trial court erred by revoking his probation because his failure

to report was excusable, due to his lack of transportation. He also argues that this case is

similar to Baldridge v. State, 

, 

 (1990). In Baldridge, this court

reversed a trial court’s revocation of a twenty-year-old’s probation when the evidence

presented at the revocation hearing was that he was seventeen when the offense was

committed, lived in Texas, was the sole provider for his mother, who had cancer, and his

three younger siblings, had worked at every job he could find, had used all of the money he

had earned to care for his family, and had no transportation. It appeared to this court that

Baldridge was making every effort possible to comply with the conditions of his probation and

came up short through no fault of his own.

       Here, appellant was not revoked for failure to pay, he was revoked for failure to report.

Although he claimed that he had no transportation or money, he clearly had not explored all

available options for transportation to the probation office. He also failed to explain why he

did not have employment that would have granted him the necessary funds to travel to the

probation office. He admitted that he had paid for a ride in October and November, but

failed to explain why that was not an option after that time. Appellant also never responded

to any of the efforts of his probation officer to contact him and never contacted her of his

own accord to explain why he was not reporting. We hold that the trial court did not err by


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finding that appellant’s failure to report was inexcusable.

       Affirmed.

       GLADWIN, C.J., and PITTMAN, J., agree.

       Knutson Law Firm, by: Gregg A. Knutson, for appellant.

       Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., and Trae
Norton, 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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