                                  Cite as 2016 Ark. App. 8


                 ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                       No. CR-15-514

 NATALIE NICOLE ALSBROOK                          Opinion Delivered:   January 6, 2016
                     APPELLANT
                                                  APPEAL FROM THE CRITTENDEN
 V.                                               COUNTY CIRCUIT COURT
                                                  [NO.CR-2013-264]
 STATE OF ARKANSAS
                                   APPELLEE HONORABLE RALPH WILSON, JR.,
                                            JUDGE

                                                  AFFIRMED

                            WAYMOND M. BROWN, Judge

       Appellant appeals from the circuit court’s revocation of her probation and subsequent

sentence of eighteen months’ imprisonment in the Department of Community of

Correction, to be followed by thirty-six months’ suspended imposition of sentence. On

appeal, appellant’s sole argument is that the circuit court erred in finding that appellant’s

violations were inexcusable. We affirm.

       On April 29, 2013, appellant pled guilty to the offense of possession of a schedule I

controlled substance, a Class D felony, and received a sentence of five years’ probation. On

January 16, 2014, the State filed a petition for revocation of probation alleging that appellant

had committed the following violations: 1) failure to pay fines, costs, and fees as directed; 2)

failure to report to probation and drug counseling sessions as directed; 3) failure to pay

probation fees; 4) failure to notify sheriff and probation of current address and employment;

and 5) positive drug tests for opiates, marijuana, amphetamines, and benzodiazepines on

November 26, 2013, and December 19, 2013.
                                   Cite as 2016 Ark. App. 8

       On September 6, 2014, a search of a vehicle driven by appellant during a traffic stop

disclosed six hypodermic needles containing a brown substance. 1 She denied knowing the

needles were in the vehicle. She was taken into police custody.

       On September 11, 2014, the State filed an amended petition for revocation of

probation adding violations for 1) a positive drug test for heroin/opiates on June 16, 2014;

2) operating a motor vehicle with no driver’s license in possession; and 3) possession of drug

paraphernalia.

       A hearing on the revocation petition was held on February 19, 2015. Appellant’s

probation officer testified that he gave appellant her intake. Her intake included going over

the conditions of her probation, which included the requirements that she report as directed,

pay all supervision fees, and not violate any state, federal, city, or other law. He testified that

appellant tested positive for marijuana and opiates on December 19, 2013; opiates on June

26, 2014; and opiates, benzodiazepines, and marijuana on October 14, 2014. 2 He also

testified that appellant failed to report to four appointments early on in her probation, one

of which was for her initial assessment with the drug counselor. 3 He went on to testify that

she had failed to report to him at all since October 14, 2014.



       1
         While the needles were placed in evidence, the substance contained in them was
never tested.
       2
        She also tested positive on a drug test on November 6, 2013; however, the
probation officer did not detail what drug she tested positive to in his violation report.
       3
         The dates were January 2, 2014; January 6 or 7, 2014 (the probation officer was
not sure which date was correct); January 9, 2014; and February 25, 2014. Appellant was
also unavailable when her probation officer conducted a home visit on January 8, 2014.


                                                2
                                   Cite as 2016 Ark. App. 8

       The arresting officer during her September 6, 2014 traffic stop testified that appellant

was driving without a license and that her demeanor changed to include the appearance of

nervousness and rapid speech as he approached the car window. He stated that upon finding

the hypodermic needles, appellant told him that they were used for shooting dope, though

she said they were for insulin at the police station. The officer testified that appellant denied

that the needles belonged to her. The car belonged to a “Brian” and not appellant.

       Appellant asserted that she went to a drug counseling session in October 2014 and

applied for the drug court program. 4 She stated that she was borrowing the car from Brian

David Hill and that she would not have consented to the search if she had known the

hypodermic needles were in the car. She denied being an intravenous user. She admitted

that she had a “drug problem.” She claimed to have a prescription for the benzodiazepines,

but she “never took Ms. Evans the paperwork.” 5 She had no explanation for her positive

marijuana drug test. She did not address her failure to report. She admitted not having her

driver’s license with her when she was stopped on September 6, 2014.

       The circuit court found that appellant had inexcusably failed to comply with

probation conditions requiring that she report to her probation officer as directed and test

negative on drug tests. It specifically noted appellant’s failure to attend drug counseling class

as directed by her probation officer and her positive drug tests for opiates on June 26, 2014;




       4
           No proof of either assertion was submitted.
       5
           What role Ms. Evans played was not clear.


                                               3
                                   Cite as 2016 Ark. App. 8

and opiates, benzodiazepine, and marijuana on October 14, 2014. This timely appeal

followed.

       If a court finds by a preponderance of the evidence that the defendant has inexcusably

failed to comply with a condition of his suspension, the court may revoke the suspension at

any time prior to the time it expires. 6 Evidence that is insufficient for a criminal conviction

may be sufficient for the revocation of a suspended sentence. 7 This court will not reverse

the trial court’s decision to revoke unless it is clearly against the preponderance of the

evidence. 8 We must give due regard to the circuit court’s superior position in determining

the credibility of witnesses and weight to be given their testimony. 9 In order to support

revocation of probation, the State has the burden of proof but need prove only one violation

of conditions of probation. 10 Appellant argues that the evidence was insufficient to prove

that she “inexcusably” failed to comply with a condition of her probation as required for

revocation under Arkansas Code Annotated section 16-93-308(d). The term “inexcusable”

is defined as “incapable of being excused or justified-Syn. unpardonable, unforgivable,



       6
        Ta v. State, 2015 Ark. App. 220, at 3, 459 S.W.3d 325, 327 (citing Ark. Code Ann.
§ 16-93-308(d) (Supp. 2013)).
       7
       Id., 2015 Ark. App. 220, at 3, 459 S.W.3d at 328 (citing Sherril v. State, 2014 Ark.
App. 411, 439 S.W.3d 76).
       8
       Reyes v. State, 2015 Ark. App. 55, at 2, 454 S.W.3d 279, 280 (citing Owens v. State,
2009 Ark. App. 876, at 6, 372 S.W.3d 415, 419).
       9
       Peals v. State, 2015 Ark. App. 1, at 4, 453 S.W.3d 151, 154 (citing Vail v. State,
2014 Ark. App. 407, 438 S.W.3d 286).
       10
            Id. (citing Robinson v. State, 2014 Ark. App. 579, 446 S.W.3d 190).


                                               4
                                    Cite as 2016 Ark. App. 8

intolerable.” 11 “Forgivable, pardonable, and excusable behavior” does not justify a probation

revocation. 12

                 Appellant first argues that appellee failed to prove that her failure to report

was inexcusable. Normally, an appellant is limited on appeal by the nature and scope of the

allegations as those allegations were addressed to the trial court. 13 However, we treat

appellant’s argument as one for sufficiency of the evidence supporting the revocation. While

appellant did not make a motion to dismiss, no such motion is necessary to preserve an

objection to the sufficiency of the evidence to support a revocation. 14

       Appellant’s probation officer testified that she missed four appointments with him in

the months of January and February. He further testified that she had no contact with him

after October 14, 2014. Appellant argues that there was no proof submitted that she had

appointments scheduled with her probation officer at those times, and therefore, the

argument goes, there was no proof that she inexcusably missed appointments. However,

appellant did not argue before the circuit court that she was not supposed to meet with her



       11
          Anglin v. State, 98 Ark. App. 34, 37, 249 S.W.3d 836, 838 (2007) (citing Barbee v.
State, 346 Ark. 185, 56 S.W.3d 370 (2001) (citing Random House Compact Unabridged
Dictionary 977 (1996))).
       12
            Reyes, supra (citing Schubert v. State, 2013 Ark. App. 698, at 4).
       13
          Weekly v. State, 2014 Ark. 365, at 5, 440 S.W.3d 341, 345 (2014) (citing Tester v.
State, 342 Ark. 549, 30 S.W.3d 99 (2000) (holding that a party cannot change the nature
and scope of his argument on appeal); Matthews v. Hobbs, 2013 Ark. 381).
       14
          McWilliams v. State, 2009 Ark. App. 542, at 3, 336 S.W.3d 884, 885 (2009) (citing
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)).

                                                 5
                                 Cite as 2016 Ark. App. 8

probation officer at or during the times her probation officer asserted that she was absent.

Nor did she argue below that she missed appointments after October 14, 2014, because she

was allegedly imprisoned as she now argues before this court, 15 despite her own testimony

that she “did Christmas and Thanksgiving with [her] family and then sat in jail.”

       The State proved that appellant violated the condition of her probation that required

that she report to her probation officer. Though appellant now argues that no proof was

submitted that she had appointments scheduled with her probation officer on the specific

dates that he asserted she missed and that she missed later appointments because she was in

jail, 16 no evidence of the same was submitted below. Furthermore, she only denied failing

to report to drug counseling; she did not deny failing to report on any of the dates or time

periods testified to by her probation officer. Accordingly, there was no evidence before the

court that appellant’s violation may have been, or was, excusable.

       Because we affirm appellant’s probation revocation under the failure-to-report

violation, we are not required to address appellant’s argument that the circuit court erred in

finding that her positive drug tests were inexcusable. However, we note that a bare assertion

of a “drug problem” is not sufficient evidence to support a finding that a failed drug test is




       15
          The record below is clear that appellant was not in jail until December 26, 2014,
as her then-attorney advised the court.
       16
         We note that appellant’s argument that she failed to report to her probation officer
after October 14, 2014, due to being incarcerated on a warrant was itself a violation of the
conditions of her probation which state that “The defendant shall live a law-abiding life, be
of good behavior and not violate any state, federal, or municipal law.”


                                              6
                                    Cite as 2016 Ark. App. 8

excusable. 17 We note also that this argument was not raised below, therefore we will address

it no further.

       Affirmed.

       GRUBER and HIXSON, JJ., agree.

       Tyler Ginn, for appellant.

       Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.




       17
          Appellant argues that chemical dependency has been recognized by the supreme
court as a disease, which is true; however, she provides no caselaw showing that the same
has been found to be a reasonable excuse for a probation revocation, nor did she provide
any credible evidence that she was suffering from chemical dependency beyond her own
testimony that she had a “drug problem.” See In Re Application of Crossley, 301 Ark. 435
(1992). This court does not consider an argument, even a constitutional one, if the appellant
makes no convincing argument or cites no authority to support it, and it is not apparent
without further research that the appellant’s argument is well taken. Nelson v. State, 2011
Ark. 429, at 8, 384 S.W.3d 534, 539 (2011) (citing Talbert v. State, 367 Ark. 262, 239
S.W.3d 504 (2006)). We further note Arms v. State, 2014 Ark. App. 593, which stated
regarding Arms’s argument that the trial court could have found her drug addiction to be a
reasonable excuse for her noncompliance, that it was a legitimate argument to make before
the trial court but not our court on appeal because it ignores our standard of review.
Accordingly, this court affirmed Arms’s revocation because she admitted that she understood
the conditions of her probation and admitted violating those terms by using
methamphetamine. Likewise, appellant makes no argument that she did not understand the
conditions of her probation, which she signed on April 29, 2013, and admitted to using
drugs.
                                               7
