                                   Cite as 2016 Ark. App. 403


                    ARKANSAS COURT OF APPEALS
                                          DIVISION II
                                          No. CR-15-691

                                                     Opinion Delivered   September 14, 2016

DEMARCUS BROWN                                       APPEAL FROM THE PHILLIPS
                                APPELLANT            COUNTY CIRCUIT COURT
                                                     [NO. 54CR-12-119]
V.
                                                     HONORABLE RICHARD L. PROCTOR,
                                                     JUDGE
STATE OF ARKANSAS
                                  APPELLEE           AFFIRMED


                                 LARRY D. VAUGHT, Judge

       Demarcus Brown appeals the Phillips County Circuit Court’s revocation of his

probation. On appeal, he argues that the petition for revocation failed to provide notice of

the allegations against him, that he was not properly served, and that there was insufficient

evidence to support the revocation of his probation. We affirm.

       In 2012, pursuant to a guilty plea to charges of residential burglary and first-degree

battery, Brown was sentenced to five years’ probation. On December 5, 2014, the State filed

a petition to revoke Brown’s probation, alleging that Brown had committed arson and first-

degree battery; possessed a knife; failed to pay fines, fees, and court costs as ordered; and failed

to comply with the instructions of his probation officer. The certificate of service attached to

the revocation petition stated that it had been served on Brown’s attorney, 1 along with copies

of the criminal summons, order setting the revocation hearing, and notice of the hearing.


       1  The record indicates that the documents were served on Dion Wilson, who had been
appointed to represent Brown against new criminal charges stemming from the same events
at issue in this probation-revocation proceeding.
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       At the hearing on January 29, 2015, the court granted the State’s motion for a

continuance and rescheduled the hearing for February 9, 2015. Brown argued that he had not

been personally served with the revocation petition, but he made no motion and obtained no

ruling on the issue.

       At the February 9 hearing, Brown again argued that he had not been personally served.

The prosecutor stated that his records showed that the documents had been served on

Brown’s attorney, which Brown did not dispute. Brown stated that service on his attorney was

not proper, but neither made any legal arguments nor cited any authority for his statement.

The court overruled Brown’s objection.

       Princess Burnside, Brown’s probation officer, began to testify that Brown had tested

positive for drugs numerous times during his probation. Brown’s counsel immediately

objected that the petition for revocation did not allege anything about failed drug tests. The

State responded that the petition alleged that Brown had failed to participate in supervised

probation, failed to report, and failed to fully comply with the written and verbal instructions

of his probation officer. The court found that was sufficient notice to cover allegations of

failed drug tests and overruled the objection.

       Burnside testified that Brown had tested positive for marijuana when he came in for

probation intake on August 2, 2012, and that he had tested positive for marijuana three

additional times, one of which he also tested positive for cocaine. Burnside also testified that

Brown remained delinquent on his supervision fees. She stated that she had checked and

confirmed that Brown had neither paid his fees nor worked them off by doing community

service. Burnside testified that Brown had failed to report in January, March, April, June, and


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December of 2013 and February, April, and June of 2014. She also testified that Brown failed

to follow instructions by moving without notifying his probation officer or obtaining approval.

Burnside testified that, during Brown’s intake, she had gone over the conditions of his

probation with him. One of the conditions of probation that she had counseled Brown to

abide by was the requirement that he not commit any new felonies while on probation.

           Cordarious Willis testified that he knew Brown and that Brown had threatened to kill

him and his family. He witnessed Brown fighting with Lorenzo Danaby. He testified that

Lorenzo had started the fight and that he saw Brown with a knife and saw Brown stab Lorenzo

with it.

           Jennifer Wilson testified that she is the mother of Cordarious Willis. She stated that

she knew Demarcus Brown and Lorenzo Danaby because her daughter, Javona Willis, was in

relationships with both men. She stated that she had received a call that Cordarious and Brown

were fighting and that she saw Brown with a knife but did not see him stab Lorenzo.

           Lorenzo Danaby testified that he had been in a fight with Brown on October 22, 2014,

during which Brown stabbed him in the back with a knife. He testified that the stabbing

punctured his right lung and his bladder, requiring extensive medical treatment.

           Henry Louis Danaby testified that he is Lorenzo’s father and that he knew Demarcus

Brown. He stated that on October 11, 2014, someone broke the windows out of his house

and burned the house, which also burned a camper and a truck on the property. He testified

to the value of each item lost in the fire, the total of which came to $28,800. He testified that

approximately fifteen to twenty minutes before his house was burned, he saw an unfamiliar




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powder blue bicycle in his yard. He did not know who owned the bike, but the following day

he saw Demarcus Brown on the same bike.

       The court found that Brown had violated the conditions of his probation by

committing battery and arson, possessing a knife, testing positive for drugs four times, and

failing to report eight times. The court revoked Brown’s probation and sentenced him to serve

twenty-year terms in the Arkansas Department of Correction for each of the two underlying

felony convictions, to run concurrently. Brown filed a timely notice of appeal.

       A circuit court may revoke a defendant’s probation prior to expiration if the court finds

that the defendant inexcusably failed to comply with a condition of his or her probation. Ark.

Code Ann. § 16-93-308 (Supp. 2015); Miller v. State, 2011 Ark. App. 554, at 11, 386 S.W.3d 65,

71. Evidence that would be insufficient for a new criminal conviction may be sufficient for

the revocation of probation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). The State

bears the burden of proof, but it need only prove that the defendant committed one violation

of the conditions of probation. Majors v. State, 2012 Ark. App. 501, at 4. In Ferguson v. State,

2016 Ark. App. 4, 3, 479 S.W.3d 588, 590, we explained that “[o]n appeal, we will not reverse

the trial court's decision to revoke unless it is clearly erroneous, or clearly against the

preponderance of the evidence.” Moreover, we must defer to the superior position of the trial

court to determine questions of credibility and the weight to be given the evidence. Id., 479

S.W.3d at 590.

       Brown argues that he was never personally served with the revocation petition, notice

of the hearing, or criminal summons. The certificate of service on the revocation petition and

the prosecutor’s in-court statement indicated that the documents had been served on Brown’s


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court-appointed attorney, Dion Wilson, which Brown does not dispute. Brown argues that

service on his attorney was “not proper” and that he should have been personally served. We

disagree.

       It is undisputed that Brown and his counsel had actual notice of the time and place of

the revocation hearing. In Miller, we held that “actual notice of the time and place of the

revocation hearing is sufficient.” 2011 Ark. App. 554, at 8, 386 S.W.3d at 70. Since Miller was

decided, the General Assembly has amended Arkansas Code Annotated section 16-93-307,

which is the statute governing probation-revocation proceedings. In keeping with Miller, the

current version of the statute simply requires that “the defendant shall be given prior written

notice” of the hearing, the purpose of the hearing, and the condition of probation he is alleged

to have violated. See Miller, 2011 Ark. App. 554, at 5, 386 S.W.3d at 68; Ark. Code Ann. § 16-

93-307. A plain reading of the statute indicates that it requires only “prior written notice,”

which Brown admits he received. Accordingly, we affirm on this point.

       Brown also argues that the allegations contained in the petition for revocation were so

vague that they failed to provide sufficient notice of the factual basis for revocation that the

State was alleging against him. Arkansas Code Annotated section 16-93-307(b)(3)(c) requires

that the defendant be given prior written notice of the condition(s) of suspension or probation

he is alleged to have violated. The petition specifically alleged that Brown had committed

felonies while on probation: battery in the first degree against Lorenzo Danaby when Brown

stabbed him and arson when Brown burned the home of Henry Louis Danaby. It also

specifically alleged that Brown had possessed a knife in violation of the terms of his probation;

failed to pay his fines, fees, and costs; failed to participate in supervised probation; failed to


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report to his probation officer; and failed to comply with the instructions of his probation

officer.

           Brown argues that the petition did not provide notice that the State also intended to

present evidence that he had tested positive for drugs. The State argues that the revocation

petition alleged that Brown had failed to comply with the written and verbal instructions of

his probation officer, which was sufficient. We need not decide whether the revocation

petition provided sufficient notice of the allegation that Brown had failed his drug tests

because the petition provided notice of other separate and independent grounds for

revocation, on which the court ultimately based its revocation order. Specifically, the petition

alleged that Brown had failed to report, had committed subsequent felonies, and had possessed

a deadly weapon, all of which the court found to be violations of the terms and conditions of

Brown’s probation. To support revocation, the State need only prove that Brown committed

one violation of the conditions of his probation. Majors, 2012 Ark. App. 501, at 4.

           Lastly, Brown argues that there was insufficient evidence to support the court’s finding

that he had violated the terms and conditions of his probation. Brown failed to raise this

argument below, and the State argues that it is not preserved for appeal. However, it is well

settled that a defendant may challenge the sufficiency of the State’s proof on appeal from a

revocation in the absence of a directed-verdict motion or motion to dismiss. Barbee v. State,

346 Ark. 185, 56 S.W.3d 370 (2001). However, we find no merit in Brown’s argument, because

there was sufficient evidence to support the revocation. In addition to the testimony from

several witnesses that they had seen Brown possess a knife and stab Lorenzo Danaby, Princess

Burnside testified that Brown had failed to report at least eight times, which Brown did not


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dispute or rebut. Therefore, we find that there was sufficient evidence to support the court’s

finding that Brown had inexcusably violated the terms and conditions of his probation. We

affirm.

          Affirmed.

          HARRISON and GLOVER, JJ., agree.

          Wilson Law Firm, P.A., by: E. Dion Wilson, for appellant.

          Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.




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