Anderson v. State
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Cite as 2011 Ark. App. 350
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR 10-973
Opinion Delivered
DOUGLAS A. ANDERSON
APPELLANT
May 11, 2011
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
[NO. CR 2005-897]
V.
HONORABLE J. MICHAEL FITZHUGH,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
ROBIN F. WYNNE, Judge
Douglas Anderson appeals the circuit court’s order revoking his suspended imposition
of sentence. We affirm.
Anderson was convicted of theft by receiving and three counts of commercial burglary
on February 10, 2006. He was sentenced to serve twenty years in jail with an additional
twenty years suspended and ordered to pay $114,279.21 in restitution at a rate of $100 per
month. Anderson’s suspended sentence was conditioned, among other things, on his not
violating any state law and paying restitution as ordered. Anderson was released from the
Arkansas Department of Correction on September 8, 2009.
On June 15, 2010, the prosecuting attorney filed a petition to revoke, stating that
Anderson had violated the terms of his suspended sentence by committing first-degree
Cite as 2011 Ark. App. 350
terroristic threatening on June 6, 2010, and failing to pay restitution as ordered. At a hearing
on July 30, 2010, the circuit court found by a preponderance of the evidence that Anderson
violated the conditions as the State had alleged. Anderson was sentenced to six years in the
Arkansas Department of Correction with an additional thirty-four years suspended. On
appeal, Anderson argues that the State failed to show that he violated the conditions of his
suspended sentence by a preponderance of the evidence and asks this court to dismiss the
State’s petition to revoke.
A court may revoke a defendant’s suspended sentence only if the State proves by a
preponderance of the evidence that the defendant failed to comply with the conditions. Jones
v. State, 355 Ark. 630, 144 S.W.3d 254 (2004). On appellate review, the trial court’s findings
are upheld unless they are clearly against a preponderance of the evidence. Richardson v. State,
85 Ark. App. 347, 157 S.W.3d 536 (2004). Deference is given to the circuit court’s superior
position to weigh the evidence and determine witness credibility. Stultz v. State, 92 Ark. App.
204, 212 S.W.3d 42 (2005). In order to revoke a suspended sentence, the State need only
prove that the defendant violated one condition of his suspended sentence. Ramsey v. State,
60 Ark. App. 206, 959 S.W.2d 765 (1998).
The court heard conflicting evidence regarding the events of June 6, 2010. The State
called Tammy Hobbs, the sister of Anderson’s ex-girlfriend, to testify that, on June 5, 2010,
Anderson came to the flea market where she and her family worked, and he was asked to
leave after threatening Hobbs’s father. She said that Anderson came back the next day, and
he flipped her off. Hobbs testified that she told Margie Sellers, the manager of the flea market,
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Cite as 2011 Ark. App. 350
what Anderson had done, and Sellers stopped Anderson at the gate to tell him not to return.
Anderson began to cuss and threaten her. Specifically, she testified that Anderson said, “I will
kill you and your whole family. You don’t know what I can do, and the bad thing is you
won’t even know when it is coming.” Hobbs’s parents drove into the parking lot, and she
claims that Anderson threatened to kill them, as well.
Anderson claims that he did not know that his ex-girlfriend’s family had a problem
with him when he came to the flea market on June 6, 2010, with a friend. He and his friend
both testified that there was no altercation while they were in the flea market, and only when
they were driving away did two men stop them and ask why Anderson had flipped off
someone in the store. Anderson said that they were trying to leave but were blocked by
Hobbs’s parents, who were threatening and yelling at him. Anderson argues that he never
threatened anyone, and he was afraid.
Sellers testified that while she did not hear any of the comments, she remembers
nothing impeding Anderson from leaving the parking lot. Marilyn Sue Young, a booth owner
at the flea market, testified that she heard Anderson yelling and threatening to kill someone
as he was leaving the flea market. She also claims that the driveway was never blocked.
The circuit court found by a preponderance of the evidence that Anderson committed
first-degree terroristic threatening, defined as threatening to cause death or serious physical
injury or substantial property damage to another person with the purpose of terrorizing
another person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Repl. 2006).
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Cite as 2011 Ark. App. 350
The court’s finding that Anderson committed first-degree terroristic threatening is not
clearly against a preponderance of the evidence. The only neutral witness, Young, testified
that she heard Anderson threaten to kill someone. The circuit court was in the best position
to observe the demeanor of the witnesses, and the court found the State’s witnesses to be
more credible than Anderson’s. We hold that the trial court’s finding that Anderson violated
the terms and conditions of his suspended sentence by committing the offense of first-degree
terroristic threatening is not clearly against the preponderance of the evidence.
Because a single violation is sufficient to support the revocation of a suspended
sentence, this court need not address Anderson’s arguments regarding restitution.
Affirmed.
A BRAMSON and B ROWN, JJ., agree.
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