Kirby v. State

*ADVREPCA4*
                          DIVISION III









RANDY KIRBY
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CACR 95-284

                                                February 28, 1996


APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT [NO. CR-
90-709]

HONORABLE DAVID BURNETT,
CIRCUIT JUDGE

AFFIRMED




                   John F. Stroud, Jr., Judge.


                                
     Appellant, Randy Kirby, appeals from the revocation of his
suspended sentence.  His sole argument on appeal is that there was
insufficient evidence to support the trial courtþs finding that he
violated the terms of his suspended sentence.  We disagree and
affirm.
     Appellant pled guilty to forgery charges on May 29, 1991, and
received a ten-year suspended sentence.  On November 24, 1992, an
arrest warrant was issued for the appellant charging him with
robbery and battery for the stabbing of Willy Taylor.  The State
also filed a petition for revocation alleging that the appellant
robbed Willy Taylor while armed with a deadly weapon and caused
serious physical injury by means of a deadly weapon.  The
revocation hearing was held simultaneously with the trial.  A jury
acquitted appellant of both the robbery and battery charges, but
the trial court found that the appellant violated the terms and
conditions of his suspended sentence.  The trial court revoked
appellantþs suspended sentence and sentenced him to a term of eight
years in the Arkansas Department of Correction.  On appeal,
appellant argues that there was insufficient evidence to support
the trial courtþs decision to revoke his suspended sentence.
     The State urges us to affirm this case pursuant to Ark. Sup.
Ct. R. 4-2 because appellant failed to abstract the conditions of
his suspension.  It is the duty of the appellant in a criminal case
to abstract such parts of the record as are material to the points
to be argued in the appellantþs brief.  Ark. Sup. Ct. R. 4-3(g). 
In our review of the trial courtþs revocation of a suspended
sentence, the conditions of suspension are a material part of the
record necessary to an understanding of the questions presented. 
See Bangs v. State, 310 Ark. App. 235, 835 S.W.2d 294 (1992).  The
failure to abstract a critical document precludes this court from
considering issues concerning it.  Jackson v. State, 316 Ark. 509,
872 S.W.2d 400 (1994).  However, as long as we can determine from
a reading of the briefs and appendices the material parts necessary
for an understanding of the questions at issue, we will render a
decision on the merits.  Carmical v. Beebe, 316 Ark. 208, 871 S.W.2d 386 (1994).  
     Although appellant failed to abstract the terms of his
suspension, it is clear from the portion of the abstract setting
forth the judge's comments and from the parties' briefs that the
trial court found that appellant committed a battery which
constituted a violation of the terms of his suspended sentence. 
Appellant does not challenge the finding that the commission of a
battery is a violation of his suspended sentence.  Instead, he
argues that the State did not present sufficient evidence at the
combined trial to show by a preponderance of the evidence that he
committed a battery.  Thus, the issues are sufficiently defined by
the abstract and the parties' briefs for us to reach the merits of
the case.
     In order to revoke a suspended sentence, the trial court must
find by a preponderance of the evidence that the defendant failed
to comply with the conditions of his suspension, and we do not
reverse that decision on appeal unless it is clearly against the
preponderance of the evidence.  Alford v. State, 33 Ark. App. 179,
804 S.W.2d 370 (1991).  
     At the trial of this case, Willy Taylor testified that he was
standing outside a club named Ottoþs around ten or eleven oþclock
p.m. on November 20, 1992, when appellant approached and asked
whether he had any money.  Mr. Taylor said that there was no one
else outside Ottoþs at that time.  He said that, when he turned to
go back into the club he felt something sharp hit him in his chest,
and he fell into a ditch.  On cross-examination, Mr. Taylor
admitted that he had been drinking the night of the battery and had
poor eyesight.  
     Appellant testified that he did not commit the battery.  He
said that he was not at Ottoþs the night of the stabbing; instead,
he claimed that he was at Blackþs Cafe until around eleven oþclock
p.m. when he went home and slept on the couch.  Testimony by Sara
Kirby, appellantþs mother, corroborated his testimony that he was
at home asleep on the couch around eleven oþclock p.m.  The jury
found the appellant not guilty, but the trial court found that
appellant violated one of the terms of his suspended sentence by
committing a battery on Willy Taylor.  
     The evidence presented was circumstantial and, perhaps,
inadequate for a conviction, but that quantum of evidence is not
required in a revocation hearing.  Gordon v. State, 269 Ark. 946,
601 S.W.2d 598 (1980).  Because the burdens are different, evidence
that is insufficient for a criminal conviction may be sufficient
for a probation revocation.  Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992).  On our review of the evidence, we cannot say
that this finding is clearly against the preponderance of the
evidence.  A determination of preponderance of the evidence turns
heavily on questions of credibility and weight to be given the
testimony, and, in that respect, we defer to the superior position
of the trial court to make that determination.  Id.  The trial
court was entitled to believe the testimony of the victim and to
discount any exculpatory testimony.  We hold that the evidence
presented was sufficient to support the trial courtþs finding.   
     Affirmed.
     Mayfield and Neal, JJ., agree.