ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

NILE FLOYD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-58

January 18, 2006

APPEAL FROM THE IZARD COUNTY CIRCUIT COURT

[NO. CR02-61]

HON. TIMOTHY W. WEAVER,

JUDGE

AFFIRMED; MOTION GRANTED

Robert J. Gladwin, Judge

Appellant Nile Floyd appeals from the revocation of the probationary sentence he received for manufacturing methamphetamine and the unauthorized use of another's property to facilitate a crime. Upon revocation, the Izard County Circuit Court sentenced him to twenty years' imprisonment for manufacturing methamphetamine along with a ten-year concurrent sentence for the latter offense. Counsel for appellant has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1), alleging that this appeal is without merit. The motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days. Appellant elected not to file any points. We affirm the revocation and grant counsel's motion to withdraw.

On May 19, 2003, appellant pleaded guilty to manufacturing methamphetamine and to the unauthorized use of another's property to facilitate a crime, and he was placed on ten years' probation. On October 6, 2004, the State filed an amended petition, alleging that appellant had violated the conditions of his probation as follows: (1) he failed to report to his probation officer as ordered; (2) he failed to make payments on his fines, court costs, probation fees, and other costs; (3) he traveled out of the state of Arkansas without permission; (4) he changed his address without notifying his probation officer; (5) on or around June 11, 2003, through June 21, 2003, he committed three counts of residential burglary, one count of felony theft of property, two counts of misdemeanor theft of property, and one count of theft by receiving; (6) on or about November 28, 2003, he committed the crime of possession of methamphetamine in the state of Washington.

At a hearing on the State's petition, Kenny Kendrick, appellant's probation officer, testified that in June 2003 appellant came to him and said that he had a job in Missouri. According to Kendrick, it was standard procedure to allow probationers to work in Missouri because Salem, Arkansas, is close to the state line. Kendrick gave appellant permission to work in Missouri on the condition that he come back to Arkansas every night. Gary Clayton, another probation officer, testified that, at some point after June 2003, he went to the address that appellant had provided to his probation officer. At that address, Clayton encountered appellant's housemate Michael Robertson, a convicted felon, who told Clayton that appellant had left. According to Kendrick, he did not see appellant again until appellant was arrested in the state of Washington in December 2003 for possession of methamphetamine.

Jeannie Kimble, a records keeper and part-time deputy at the Izard County Sheriff's Office, testified that she set up a pay sheet for appellant and was responsible for receiving payments for fines and costs. Kimble stated that she had not received any payments from appellant or from anyone on his behalf.

Officer Brad Schoffler with the Fulton County Sheriff's Office testified that he investigated several burglaries that occurred in June 2003. Officer Schoffler learned that an Omni vehicle had been seen at one of the houses that was burglarized. Over appellant's hearsay objection, Officer Schoffler was allowed to testify that some neighbors told him that a vehicle matching that description had been seen at a residence on Redbud Road. Officer Schoffler learned that Robertson and appellant lived at the residence. During a search of the residence, officers found property that had been reported stolen during the burglaries he was investigating. Robertson implicated both himself and appellant. According to Robertson, appellant sold a fifty-caliber night muzzle loader to a pawn shop in West Plains, Missouri. Officer Schoffler confirmed that information with the pawn shop's records.

Following a hearing on the State's petition, the trial court found that the State had proven by a preponderance of the evidence its allegations in paragraphs (1), (2), (3), (4), and (6). The trial court found that it could disregard the allegation contained in paragraph (5), although the trial judge stated that he believed the testimony regarding appellant's involvement in the burglaries.

Counsel for appellant contends that there was one objection made during the hearing, namely, the hearsay objection made during Officer Schoffler's testimony regarding what the neighbors said to him. At the hearing, the State pointed out that hearsay evidence is admissible in revocation proceedings. Counsel argues that, even if the ruling were incorrect, it was harmless error because the trial court specifically did not revoke appellant's probation based on the allegation about the burglaries. Alternatively, counsel argues that Officer Schoffler's testimony was not hearsay because it was not offered for the truth of the matter asserted, but rather it was introduced to explain why the officer went to the residence where Robertson and appellant lived.

We have observed that although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses does apply. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). It is not clear, however, that appellant's hearsay objection was based on the Confrontation Clause. In any event, we agree with counsel's assertion that the officer's testimony was not hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c). An out-of-court statement is not hearsay if it is offered, not for the truth of the matter asserted, but to show the basis for the witness's action. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). Here, Officer Schoffler's testimony that he received information from neighbors in the area about a vehicle that was possibly involved in a robbery showed why the officer went to the residence on Redbud Road. Moreover, even if the officer's testimony were inadmissible hearsay, the trial court did not revoke appellant's probation based on Officer Schoffler's testimony about his investigation into the burglaries.

Next, counsel points out that no directed-verdict motion was made following the State's case-in-chief. Following our supreme court's ruling in Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), the requirements of Rule 33.1 of the Arkansas Rules of Criminal Procedure regarding motions for dismissal and directed verdicts do not apply to revocation hearings. As a result, the fact that appellant failed to move for dismissal regarding his probation revocation would not preclude him from raising a sufficiency issue on appeal.

Probation may be revoked upon a finding by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of the probation. Wade v. State,64 Ark. App. 108, 983 S.W.2d 147 (1998). The trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). The State need only prove one violation in order to support revocation. Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003).

In the no-merit brief, counsel addressed the sufficiency of the evidence, arguing that the evidence that appellant violated the terms and conditions of his probation was undisputed and that the State proved at least one violation. We agree. The evidence supports the trial court's findings that appellant failed to report to his probation officer; that appellant failed to make any payments on his fines, costs, and fees; that he failed to notify the proper authorities of his change of address; that appellant left the state of Arkansas without permission; and that appellant went to the state of Washington where he committed the crime of possession of methamphetamine. Any one of those bases supports the revocation; therefore, we cannot say the trial court's decision was clearly against the preponderance of the evidence.

From a review of the record and the brief presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and pursuant to the requirements of Anders, we agree with counsel that the appeal is wholly without merit. Accordingly, we affirm appellant's revocation and grant counsel's motion to withdraw.

Affirmed; motion granted.

Bird and Vaught, JJ., agree.