
    Shunta Vile SAMS v. STATE of Alabama.
    CR-08-0884.
    Court of Criminal Appeals of Alabama.
    June 26, 2009.
    Thadius William Morgan, Jr., Enterprise, for appellant.
    Troy King, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   WINDOM, Judge.

Shunta Vile Sams appeals the circuit court’s judgment revoking his probation. On September 23, 2008, Sams’s probation officer filed an “Officer’s Report on Delinquent Probationer,” alleging that Sams had violated his probation by committing three new offenses: contributing to the delinquency of a child, first-degree criminal trespass, and third-degree criminal mischief. On December 15, 2008, the circuit court entered an order revoking Sams’s probation. In its order, the circuit court found that Sams had violated the terms of his probation due to his “commission of a new criminal offense, namely, Contributing to the Delinquency, Dependency, or In Need of Supervision of a Child.” (C.R. 9). The circuit court did not find that Sams had violated the terms of his probation by committing first-degree criminal trespass or third-degree criminal mischief as alleged by the probation officer. On January 9, 2009, Sams filed a “Motion for New Trial,” arguing that his probation was revoked based solely on hearsay evidence that the victim was a child. On February 10, 2009, the circuit court denied Sams’s motion.

On appeal, Sams argues that evidence presented at the hearing was insufficient to establish that he committed the offense of contributing to the delinquency, dependency or need of supervision of a child. Specifically, he contends that the only testimony regarding the victim’s age was inadmissible hearsay.

During the probation-revocation hearing, the State presented evidence that Sams was arrested for contributing to the delinquency of a child after Officer Dalton Francis with the Elba Police Department found Sams and D.M.D. (the alleged runaway child) in the bedroom of Jena Wood’s apartment, which Sams and D.M.D. had entered by breaking a bathroom window. In this case, the only evidence establishing that D.M.D. was a child, a necessary element of the offense of contributing to the delinquency of a child, was Officer Francis’s hearsay testimony that D.M.D. was only 16 years old when he found her in the bedroom with Sams. § 12-15-13, Ala.Code 1975, (effective January 1, 2009, this provision as amended appears at § 12-15-111, Ala.Code 1975). Thus, hearsay evidence formed the sole basis for the circuit court’s finding that Sams had violated the terms of his probation by committing the criminal offense of contributing to the delinquency of a child. This court has consistently held that “[wjhile hearsay evidence is admissible in a revocation proceeding it may not serve as the sole basis of the revocation.” Beckham v. State, 872 So.2d 208, 211 (Ala.Crim.App.2003); see also Brazery v. State, 6 So.3d 559, 562 (Ala.Crim.App.2008) (quoting Goodgain v. State, 755 So.2d 591, 592 (Ala.Crim.App.1999)) (“‘It is well settled that hearsay evidence may not form the sole basis for revoking an individual’s probation.’”); Clayton v. State, 669 So.2d 220, 222 (Ala.Crim.App.1995) (same); see also Ratliff v. State, 970 So.2d 939, 941-42 (Fla.Dist.Ct.App.2008) (quoting Johnson v. State, 962 So.2d 394, 396-97 (Fla.Dist.Ct.App.2007) (“ ‘While probation may be revoked based on a combination of hearsay and nonhearsay evidence, when the State seeks to revoke probation based on the commission of new offenses, it must present direct, nonhearsay evidence linking the defendant to the commission of the offense at issue.’ ” Here, the trial court abused its discretion by revoking the appellant’s probation because the State failed to present “non-hearsay evidence establishing the essential elements of the criminal offenses at issue-”)).

Because the State failed to present any nonhearsay evidence to establish that D.M.D. was a “child” when she was found in the bedroom with Sams, the circuit court erred in revoking Sams’s probation. Accordingly, we reverse the circuit court’s December 15, 2008, order revoking Sams’s probation and remand this cause for further consideration consistent with this opinion.

REVERSED AND REMANDED.

WISE, P.J., and KELLUM, J., concur.

WELCH, J., dissents, with opinion.

MAIN, J., dissents.

WELCH, Judge,

dissenting.

The majority reverses the trial court’s judgment revoking Sams’s probation based on a determination that Sams had violated the terms of his probation by committing a new criminal offense — contributing to the delinquency or dependency of a child, or causing a child to be in need of supervision. The majority holds that the trial court erred because the only evidence establishing that the victim, D.M.D., was a minor, a necessary element of the crime of contributing to the delinquency of a minor, was Officer Dalton Francis’s hearsay testimony that D.M.D. was 16 years old when he found her in the bedroom with Sams. The majority concludes that “hearsay evidence formed the sole basis for the circuit court’s finding that Sams had violated the terms of his probation by committing the criminal offense of contributing to the delinquency of a child.” 48 So.3d at 663.

I agree with the majority that a judgment revoking probation cannot be based solely on hearsay. E.g., Brazery v. State, 6 So.3d 559 (Ala.Crim.App.2008); Nash v. State, 931 So.2d 785 (Ala.Crim.App.2005); Goodgain v. State, 755 So.2d 591 (Ala.Crim.App.1999). However, that established rule of law does not apply in this case; therefore, reversal based on that rule is not necessary. Rule 27.6(d)(1), Ala. R.Crim. P., provides that the judge must be reasonably satisfied from the evidence that a violation of the conditions of probation occurred. The rule also states that, in a probation-revocation hearing, “[t]he court may receive any reliable, relevant evidence not legally privileged, including hearsay.” (Emphasis added.) A revocation of probation does not require proof beyond a reasonable doubt, as is required to sustain a criminal conviction, and the use of hearsay evidence to sustain that lower level of proof in a revocation proceeding is clearly anticipated. The reason any evidence — whether direct or hearsay — is presented at a revocation hearing is to assist the trial court in making a determination • about whether it is reasonably satisfied that the alleged probation violation occurred. Clearly, hearsay evidence is permitted as a part of the evidence necessary to make that determination.

In this case, although evidence about D.M.D.’s age was hearsay, the revocation was not based solely on that hearsay. Officer Francis had independent knowledge of the remainder of the elements of the allegations against Sams, and he provided testimony about those elements. For example, Officer Francis testified that D.M.D. was a runaway; that he and other officers had found D.M.D. with Sams in an apartment the night before she ran away; and that on the night she ran away again, Officer Francis returned to the apartment with other officers and found the juvenile in a bedroom with Sams. Sams was wearing only boxer shorts and, according to Officer Francis, it appeared that D.M.D. had just gotten out of bed when the officers entered the room. Officer Francis further testified that he observed that the bathroom window was broken and that broken glass was inside the bathroom.

Although Officer Francis’s testimony that the juvenile was 16 years old was hearsay, direct evidence established that Sams induced, aided, or encouraged the child in her efforts to run away from the custody of her guardian and that, as a result, the child became delinquent, dependent, or in need of supervision; direct evidence established other elements of the crime of contributing to the delinquency of a child. Therefore, the trial court’s revocation was not based solely on hearsay. The majority appears to hold implicitly that each element of the charge underlying a revocation violation must be established by direct evidence and not by hearsay. That result is not mandated by either Rule 27, Ala. R.Crim. P., or by any caselaw.

The trial court’s judgment revoking Sams’s probation was not based solely on hearsay, and it was due to be affirmed. Therefore, I respectfully dissent. 
      
      . At the time of the alleged offense, "child” was defined as "[a]n individual under the age of 18, or under 19 years of age and before the juvenile court for a matter arising before that individual’s 18th birthday.” § 12-15-1(3), Ala.Code 1975. Effective January 1, 2009, the definition of "child” was amended as follows: "An individual under the age of 18 years, or under 21 years of age and before the juvenile court for a delinquency matter arising before that individual’s 18th birthday. Where a delinquency petition alleges that an individual, prior to the individual’s 18th birthday, has committed an offense for which there is no statute of limitation pursuant to Section 15-3-5, the term child also shall include the individual subject to the petition, regardless of the age of the individual at the time of filing.” § 12-15-102(3), Ala.Code 1975.
     