{
  "id": 6138544,
  "name": "Ivory McKENZIE v. STATE of Arkansas",
  "name_abbreviation": "McKenzie v. State",
  "decision_date": "1998-01-28",
  "docket_number": "CA CR 97-685",
  "first_page": "161",
  "last_page": "164",
  "citations": [
    {
      "type": "official",
      "cite": "60 Ark. App. 161"
    },
    {
      "type": "parallel",
      "cite": "961 S.W.2d 775"
    }
  ],
  "court": {
    "name_abbreviation": "Ark. Ct. App.",
    "id": 13370,
    "name": "Arkansas Court of Appeals"
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  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "53 Ark. App. 219",
      "category": "reporters:state",
      "reporter": "Ark. App.",
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        6140850
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      "year": 1996,
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    {
      "cite": "Ark. Code Ann. \u00a7 5-4-309",
      "category": "laws:leg_statute",
      "reporter": "Ark. Code Ann.",
      "year": 1993,
      "pin_cites": [
        {
          "page": "(d)"
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  "last_updated": "2023-07-14T20:03:53.777728+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Bird and Griffen, JJ., agree."
    ],
    "parties": [
      "Ivory McKENZIE v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "John B. Robbins, Chief Judge.\nAppellant Ivory McKenzie was placed on probation for possession of a controlled substance and for possession with intent to deliver. The illegal substance was cocaine, and the offenses were committed in October and November of 1994. Among the conditions of probation was that he not engage in illegal drug use. The State moved to revoke alleging that appellant tested positive for illegal drugs on three separate occasions during his probationary period. A hearing on the matter was held on February 3, 1997, and the circuit court of Lincoln County found that appellant had violated the terms of his probation, resulting in revocation. He was given two concurrent ten-year sentences. He now appeals the revocation of his probation arguing that there is insufficient evidence upon which to base the revocation. We affirm.\nProbation 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. Ark. Code Ann. \u00a7 5-4-309(d) (Repl. 1993). Therefore, evidence that is insufficient to convict a person of the offense may be sufficient to revoke probation. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). On appeal of a revocation, the revocation will not be overturned unless the decision is clearly against the preponderance of the evidence. Id. We must give due regard to the trial court\u2019s superior position in determining the credibility of witnesses and the weight to be given their testimony. Id. Given these standards of review, the trial court\u2019s decision to revoke appellant\u2019s probation is not clearly against the preponderance of the evidence.\nThe evidence revealed that appellant tested positive for cocaine on June 5, 1996, and positive for marijuana on June 5, July 12, and October 2, 1996. He refused to submit to a later drug screen. Appellant\u2019s contention is not that he did not use illegal drugs, but that he had an excusable reason for using them. He testified that he suffers from keloid scarring and uses marijuana to gain relief from the pain caused by that condition. He admitted that no doctor has prescribed or recommended using marijuana or cocaine. Appellant also testified that he suffers from a split personality such that he could not swear he did not take the illegal drugs for which he tested positive. He presented no documentation to support his allegation of split personality disorder.\nWhile we might have sympathy for appellant\u2019s medical condition, it does not excuse his illicit drug use. Medical treatments to prevent infection and to dissipate pain were available by prescription under a physician\u2019s care and control, as his physician testified. His physician recommended to appellant that he attend a pain clinic for ongoing problems with his condition, but he never recommended illicit drug use. The doctor\u2019s testimony included the following statements: \u201c[I]n no way am I advocating the use of illegal drugs, because they are illegal. ... I don\u2019t advocate the use of marijuana.\u201d\nAppellant admitted to using, at some point in his life, every drug \u201cfrom heroin to cocaine.\u201d Ironically, he denied illicit drug use during the time he tested positive. Given his belief that he suffered from a split personality disorder, appellant could not assure the trial court that he did not use drugs in the past nor could he assure the trial court that he would not take drugs in the future.\nDuring his probation, the State attempted to assist appellant in getting help for his illicit drug use. Appellant stated that he could not complete such a program for various reasons. For example, he stated that he could not dedicate himself to the program because he would resort to drugs to relieve the pain. None of his reasons justify violation of probation conditions, and he presents us no compelling authority to alter the outcome of this revocation hearing. With this evidence, the trial court was not clearly erroneous when it revoked appellant\u2019s probation.\nAffirmed.\nBird and Griffen, JJ., agree.",
        "type": "majority",
        "author": "John B. Robbins, Chief Judge."
      }
    ],
    "attorneys": [
      "Maxie G. Kizer, for appellant.",
      "Winston Bryant, Att\u2019y Gen., by: Kelly S. Terry, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Ivory McKENZIE v. STATE of Arkansas\nCA CR 97-685\n961 S.W.2d 775\nCourt of Appeals of Arkansas Division II\nOpinion delivered January 28, 1998\nMaxie G. Kizer, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Kelly S. Terry, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0161-01",
  "first_page_order": 183,
  "last_page_order": 186
}