Cite as 2024 Ark. App. 244

ARKANSAS COURT OF APPEALS

DIVISION IV

No. CR-23-272

JAMES MCELROY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered April 10, 2024

APPEAL FROM THE HOWARD

COUNTY CIRCUIT COURT

[NO. 31CR-19-91]

HONORABLE TOM COOPER,

JUDGE

AFFIRMED

KENNETH S. HIXSON, Judge

Appellant James O. McElroy appeals after the Howard County Circuit Court revoked 

his suspended imposition of sentence (SIS) and sentenced him to serve eighty-four months’ 

imprisonment. Appellant argues on appeal that the circuit court erred in revoking his SIS 

because (1) State failed to introduce or show that he had received the written terms and 

conditions of his SIS at the revocation hearing, and (2) the State failed to provide him notice 

of the violation alleged in the petition for revocation. We affirm.

I. Relevant Facts

In his 2004 divorce proceedings, appellant was ordered to pay $50 a week in child 

support. By 2019, appellant was behind $20,710.60 in payments, and the State charged him 

by criminal information on August 19, 2019, with nonsupport, a Class C felony, because

appellant owed more than $10,000 but less than $25,000 in past-due child support in 
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violation of Arkansas Code Annotated section 5-26-401 (Repl. 2013). After he failed to 

appear for a pretrial hearing, the circuit court revoked appellant’s bond and issued a warrant 

for his arrest. When law enforcement initiated a traffic stop in order to arrest him, appellant 

fled the stop and led law enforcement on a high-speed chase. This resulted in a new criminal 

case, case number 31CR-20-41, in which the State charged appellant in relevant part with 

fleeing.

On June 24, 2020, appellant pleaded no contest to the charges of nonsupport and 

fleeing in both cases. The circuit court imposed consecutive sentences of three years’ 

imprisonment for fleeing and ten years’ suspended imposition of sentence for nonsupport. 

In the sentencing order in this case for nonsupport, appellant was ordered to pay restitution 

of $22,233.16.

On October 12, 2022, the State filed a petition to revoke appellant’s SIS. In the 

report and recommendation to revoke that was attached to the petition, it was alleged that 

appellant had violated the terms and conditions of his SIS by committing “an offense against 

the laws of this, or any other State, or the United States.” It more specifically explained that 

appellant had committed the offense of forgery on May 18, 2022, when he tried to pass a 

fake $100 bill at a gas station to pay for his gas. A revocation hearing was held on February 

16, 2023.

The manager of the Murphy USA gas station, Glenda Mowery, testified that on 

December 10, 2020, one of her cashiers called her in to verify a counterfeit $100 bill that 

appellant had given her in payment. Ms. Mowery stated that the bill had the words “For 
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motion picture purposes” printed on the front of it. Appellant was still in the store when 

Ms. Mowery determined that the bill was counterfeit. Although appellant asked for the bill 

to be returned to him, Ms. Mowery followed company policy, which was to keep the 

counterfeit bill and call law enforcement. After Ms. Mowery refused to give appellant the 

counterfeit bill back, appellant left the store. Ms. Mowery called law enforcement and gave 

Officer Michael Barnes the store’s surveillance footage and details about the Murphy USA 

rewards number appellant used during the transaction.

Officer Barnes testified that he investigated the case and reviewed the surveillance 

footage and details provided by Ms. Mowery. He confirmed that he saw appellant in the 

surveillance footage.

Megan Scroggins, a probation and parole officer, testified that she was contacted by 

Officer Barnes regarding the incident at the gas station. She explained that appellant had 

been sentenced to imprisonment in another case and was released on parole. She also 

acknowledged that appellant was sentenced to an SIS in this case. Ms. Scroggins testified 

that appellant was provided a “Standard Conditions of Release” document, which reflected 

conditions applicable both to his parole and his suspended sentence. She further testified 

that the document included a condition that appellant not violate another law of the State 

of Arkansas. Those conditions were admitted into evidence without objection as exhibit 2.

Ashanti Burris, another probation and parole officer, testified that she went over the 

terms and conditions when appellant was released from the Arkansas Division of Correction 

(ADC) on the other case on February 1, 2021. Ms. Burris stated that she had advised 
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appellant that the conditions in exhibit 2 were conditions of his release from ADC as well 

as conditions of his SIS. She further stated that one of those conditions included that 

appellant “obey all Federal and State laws, local ordinances and court orders.” Appellant 

signed that document, acknowledging that he had received a copy of it.

Appellant testified that the incident at the gas station was simply a misunderstanding 

and that he accidentally handed the clerk a fake bill. Appellant explained that he used fake

money to make “decorative license plates.” He maintained that after the clerk did not give 

him the bill back, he used a real $20 bill, pumped his gas, and left.

The circuit court found that appellant had knowingly violated the terms and 

conditions of his SIS and sentenced him to serve seven years’ imprisonment. This appeal 

followed.

II. Terms and Conditions of SIS

A challenge to the sufficiency of the evidence may be raised for the first time in an 

appeal of a revocation in the absence of a motion for a directed verdict or motion to dismiss. 

See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). In a revocation proceeding, the 

circuit court must find by a preponderance of the evidence that the defendant has 

inexcusably failed to comply with a condition of his or her suspension or probation, and on 

appellate review, we do not reverse the circuit court’s decision unless it is clearly against the 

preponderance of the evidence. Flemons v. State, 2014 Ark. App. 131; Ark. Code Ann. § 16-

93-308(d) (Supp. 2021). Because the burdens are different, evidence that is insufficient for 

a criminal conviction may be sufficient for a probation or suspended-sentence revocation. 
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Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Since determination of a 

preponderance of the evidence turns on questions of credibility and weight to be given 

testimony, we defer to the circuit court’s superior position. Id. Furthermore, the State need 

only prove that the appellant committed one violation of the conditions in order to revoke 

appellant’s sentence. Peals v. State, 2015 Ark. App. 1, 453 S.W.3d 151.

Appellant first contends on appeal that the State failed to introduce or show that he 

received the written terms and conditions of his SIS at the revocation hearing. He claims 

that the only condition of his SIS was for him to pay child support since the court orally told 

him at his plea hearing that he would be ordered to pay his child support as directed after 

he was released. He explains that in the absence of the court providing him written terms 

and conditions that included a “good behavior” condition, his revocation must be reversed. 

Although he acknowledges that the “Standard Conditions of Release,” which included the 

term that he “must obey all Federal and State laws, local ordinances and court orders,” was 

introduced at the revocation hearing, he argues for the first time on appeal that those terms 

were not applicable to this case or that they were somehow invalid because they failed to also 

include the specific term that he pay his child support as announced at the plea hearing. 

Therefore, he argues that because there was no evidence that he failed to pay child support 

as directed, the circuit court could not revoke his SIS.

The State argues that appellant’s arguments are not preserved, and we agree. 

Appellant couches his argument as a challenge to the sufficiency of the evidence, which is an 

argument that may be raised for the first time on appeal. See Barbee, 346 Ark. 185, 56 S.W.3d 
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370. This court, however, has held that an argument that the State failed to introduce a 

copy of the terms and conditions of probation or a suspended sentence is a procedural 

objection that must be raised before the circuit court. Workman v. State, 2022 Ark. App. 74, 

640 S.W.3d 434; Butry-Weston v. State, 2021 Ark. App. 51, 616 S.W.3d 685; Myers v. State, 

2014 Ark. App. 720, 451 S.W.3d 588. Here, appellant never objected at the hearing when 

the State introduced the “Standard Conditions of Release” or objected that the State failed 

to introduce the terms and conditions applicable to his SIS. Therefore, appellant’s argument 

that the State’s failure to introduce the written terms and conditions of his SIS is not 

preserved for review. See Griffith v. State, 2023 Ark. App. 406.

In his reply brief, appellant asserts that he is making a sufficiency argument and is not 

making a “procedural argument.” He explains that the condition he was found to have 

violated “was never communicated to [him] in connection with his suspended sentence.” 

However, again, we have held that whether there is proof that a defendant received written 

terms and conditions of probation or a suspended sentence is a procedural matter and not 

one of the sufficiency of the evidence. Green v. State, 2023 Ark. App. 199. As such, because 

appellant did not object on this basis at his revocation hearing, his argument is not preserved 

for appeal. Id. Appellant does not otherwise challenge the sufficiency of the evidence that 

he inexcusably violated the terms and conditions of his SIS when he committed the offense 

of forgery. Accordingly, we must affirm.

III. Notice
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Finally, appellant argues that his fundamental right to due process was violated 

because the petition for revocation did not adequately provide him notice of the condition 

he was alleged to have violated as required under Arkansas Code Annotated section 16-93-

307(b)(3)(C) (Repl. 2016). Under section 16-93-307(b)(3), a defendant must receive prior 

written notice of the time and place of the revocation hearing, the purpose of the revocation 

hearing, and the condition of suspension or probation the defendant is alleged to have 

violated. See Egziabher v. State, 2023 Ark. App. 225, 665 S.W.3d 275. However, unlike 

Egziabher, appellant failed to raise any statutory or due-process objection before the circuit 

court. The State correctly responds that this court has previously held that either a statutory 

or due-process lack-of-notice claim must be raised below to be entertained on appeal. See

Johnson v. State, 2011 Ark. App. 590 (holding that Johnson’s argument that he was not given 

prior notice of the conditions of probation that he was alleged to have violated was not 

preserved because Johnson failed to first raise the issue with the circuit court); Pratt v. State, 

2011 Ark. App. 185 (holding that Pratt waived any due-process argument to a violation that 

was not alleged in the revocation petition when Pratt neither objected to the admission of 

the evidence on this offense nor complained when the circuit court expressly based its 

decision to revoke upon the proof of that offense). As such, appellant’s argument on this 

issue is not preserved. Accordingly, we affirm.

Affirmed.

ABRAMSON and GRUBER, JJ., agree.

Matt Kezhaya and Sonia Kezhaya, for appellant.
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Tim Griffin, Att’y Gen., by: Christian Harris, Sr. Ass’t Att’y Gen., for appellee.