Henry v. State

Citations: 406 S.W.3d 6; 2012 Ark. App. 235; 2012 WL 1110062; 2012 Ark. App. LEXIS 340Docket: No. CA CR 11-1153

Court: Court of Appeals of Arkansas; April 4, 2012; Arkansas; State Appellate Court

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Jonale Henry, the appellant, pleaded guilty to possession of marijuana with intent to deliver and was sentenced to five years of probation on May 25, 2010, with three years supervised. The State filed a petition to revoke his probation on February 2, 2011, citing his arrest for eight counts of possession of a controlled substance without a prescription and a positive drug test for cocaine and marijuana on July 12, 2010. An amended petition on August 4, 2011, added allegations of Henry failing to report to his probation officer and missing a court appearance. Following a hearing on August 12, 2011, the trial court found Henry had violated his probation and sentenced him to one year in a regional correction facility, with an additional two years of suspended imposition of sentence. Henry appealed, arguing that the State did not meet its burden of proof regarding the probation violations. 

The court affirmed the trial court's decision, noting that the State must prove violations by a preponderance of the evidence and that findings will be upheld unless clearly against the evidence. Testimony from Kevin Trigg, Henry’s probation officer, confirmed that Henry had reported drug use, tested positive, and failed to adhere to counseling referrals. Trigg also indicated that Henry had a felony commitment in Pulaski County prior to the probation case, which included multiple drug-related incidents. The court emphasized that the standard of proof for probation revocation differs from that of criminal convictions, allowing for a lighter evidentiary burden.

Trigg provided testimony regarding Henry's probation violations, noting that Henry failed to report multiple times to the Pulaski County Office, leading to a violation report and the case being sent back to Lonoke. Trigg filed a petition to revoke Henry's probation on January 20, 2011, after which he instructed Henry to report to him following his release from jail. Despite this, Henry did not report on the specified dates after being released from the Lonoke County Jail. Trigg indicated that during Henry's subsequent court appearance on April 25, 2011, the court directed Henry to report weekly to Trigg if released, but Henry failed to do so and had not made any payments toward his fines since January 5, 2011.

Additionally, Trigg recounted that Henry's Pulaski County probation officer informed him of a pending revocation on February 8, 2011, which led to Henry's arrest. Trigg had limited supervision over Henry, who had been transferred to Pulaski County in August 2010, and thus lacked personal knowledge of Henry's compliance with probation conditions in Pulaski County. Trigg acknowledged that Henry had tested positive for marijuana and cocaine in July 2010 but did not file a revocation report at that time, instead recommending drug counseling. He stated that Henry did not provide evidence of attending such counseling and noted a four-month period during which Henry was neither in custody nor reporting to either probation officer. Trigg asserted that Henry, after being transferred, was still obligated to comply with counseling directives from both probation officers. The State rested its case, and Henry's counsel moved to dismiss the petition, arguing that Trigg could only testify about the positive drug test, which was not acted upon at the time.

The trial court denied Henry's motion to dismiss his probation revocation, citing his failure to report as directed despite being informed to do so. Testimony from Henry's mother, Virgie Scott, confirmed that he lived with her while on probation, attended probation appointments, and maintained up-to-date fines. She asserted that Henry was not required to undergo drug rehabilitation and denied that he had a drug problem, noting that his positive drug test occurred in Lonoke while he tested clean in Pulaski County. Henry testified that he had not used drugs since July and attempted to contact his probation officer, Trigg, multiple times without success. He acknowledged a prior arrest for possession of prescription drugs without a prescription.

Henry's counsel renewed the motion to dismiss, which was denied. The trial court concluded that Henry violated his probation, particularly focusing on his failure to report while not in custody. Trigg's testimony indicated that Henry had not attended drug counseling and was not supervised for four months prior to being in custody. Trigg advised Henry to seek inpatient drug counseling after a positive drug test, emphasizing that this requirement applied regardless of his location in the state. The court's decision to revoke was based on the violation of at least one condition of probation, supported by Officer Trigg's credible testimony. The appellate court affirmed the trial court’s ruling, agreeing on the lack of clear error in determining that Henry violated his probation.