Criminal procedure -- Evidence may be insufficient for conviction but enough for violation of terms of probation; trial court's decision to revoke appellant's suspended sentence not clearly against preponderance of evidence; appellant had no valid double jeopardy claim. [ASCII, WP5.1]

Montrevel BILLINGS v. STATE of Arkansas

CA CR 95-651                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                  Opinion delivered May 8, 1996


1.   Evidence -- appeal of a revocation -- factors on review. -- On
     appeal of a revocation, the evidence must be viewed in the
     light most favorable to the State; evidence that is
     insufficient to support a criminal conviction may be
     sufficient to support a probation revocation; on appeal, the
     court will not reverse unless the trial court's findings are
     clearly against the preponderance of the evidence, giving due
     regard to the trial court's superior position to determine
     credibility of the witnesses and the weight to be given their
     testimony.

2.   Criminal procedure -- evidence may be insufficient for
     conviction but enough for violation of terms of probation --
     trial court's decision to revoke appellant's suspended
     sentence not clearly against preponderance of evidence. --
     While evidence adduced at trial may be insufficient to convict
     one charged with possession of a controlled substance, it may
     be sufficient for the trial judge to determine that appellant
     has violated the terms of his probation; here, the evidence
     viewed in the light most favorable to the State showed that
     appellant possessed a key to an automobile in which police
     found cocaine upon executing a warrant to search; the trial
     court's decision to revoke appellant's suspended sentence was
     not clearly against the preponderance of the evidence.   

3.   Criminal procedure -- appellant's argument meritless -- when
     disclosure of informant's identity not required. --
     Appellant's contention that he was denied the right to
     confront the confidential informant, whose information in the
     affidavit might have been considered by the court as evidence
     that appellant possessed cocaine, was meritless where the
     abstract of the court's findings and ruling clearly showed
     that appellant's suspended sentence was revoked because he had
     the keys to a vehicle in which cocaine was found; disclosure
     of an informant's identity is not required where the defendant
     was charged only with possession and the informant merely
     supplied information leading to the issuance of the search
     warrant; where appellant's suspended sentences were revoked
     and the informant merely supplied information used in the
     affidavit supporting the warrant to search, there was no
     requirement to disclose the identity of the informant. 

4.   Criminal procedure -- appellant's request for person's
     identity not relevant -- bare assertions are insufficient to
     preserve a challenge on appeal to trial court's discretionary
     power to exclude evidence. -- Appellant's request for the
     identity of another person allegedly present in the room was
     not relevant to appellant's violation of conditions of his
     suspended sentences; appellant argued that testimony by this
     other person could have shown that it was not appellant, but
     this person, who had access to the keys and ownership of the
     drugs; however, his bare assertions were insufficient to
     preserve a challenge on appeal to the trial court's
     discretionary power to exclude evidence. 

5.   Appeal & error -- argument not supported by authority --
     argument not reached. -- Appellant's argument that the
     revocations of both his parole and his suspended sentence for
     the same conduct constituted a violation of the doctrine of
     due process was not reached because he presented no argument
     or authority as to this claim; the due process claim was
     dismissed as speculative and not supported by any reasonable
     argument or authority.

6.   Criminal procedure -- appellant's argument meritless --
     appellant had no valid double jeopardy claim. -- Appellant's
     argument that the revocation of his parole and suspended
     sentence for the same behavior violated double jeopardy was
     without merit; the revocation of appellant's parole and the
     revocation of his suspended sentence resulted in appellants
     being punished for his original offenses; neither proceeding
     imposed a separate punishment for the behavior that was the
     catalyst for the revocation proceedings; neither parole
     revocation nor suspended sentence revocation is a stage of a
     criminal prosecution; the Double Jeopardy Clause protects
     defendants in criminal proceedings only against multiple
     punishments or repeated prosecutions for the same offense, 
     thus, appellant had no valid double jeopardy claim.  


     Appeal from Sebastian Circuit Court; Don Langston, Judge;
affirmed.
     Sam Sexton, III, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.
     John F. Stroud, Jr., Judge.
     *ADVREP*CA7*               DIVISION I









MONTREVEL BILLINGS
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CACR 95-651

                                                      May 8, 1996


APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT           
[CR 93-647]

HONORABLE DON LANGSTON,
CIRCUIT JUDGE

AFFIRMED






                   John F. Stroud, Jr., Judge.


     
     On November 8, 1993, Montrevel Billings pleaded guilty to
conspiracy to deliver cocaine, a Class A felony, and possession of
drug paraphernalia, a Class C felony.  The court sentenced him to
twenty years in the Arkansas Department of Correction with fifteen
years suspended on the first felony and ten years with five years
suspended on the second.  The conditions of the suspension ordered
that he not possess or use any controlled substance, and that he
not violate any federal, state, or municipal law.  Appellant was
incarcerated, released on parole, and subsequently arrested for
possession of cocaine with intent to deliver.  The State filed a
petition to revoke the suspended sentences, and the parole board
revoked his parole.  At the revocation hearing, the suspended
sentences were revoked by the circuit judge.  Appellant was later
tried and acquitted of the charge of possession of cocaine with
intent to deliver.  Appellant raises four points on appeal.  We
find no error and affirm.
     Appellant filed two motions with the court before the
revocation hearing.  First, he asked that the petition to revoke be
dismissed as a double jeopardy violation because he already had
been reincarcerated for his parole violation.  He also asked the
court to require the State to disclose the name of the confidential
informant, stating that the Confrontation Clause of the United
States Constitution and its counterpart in the Arkansas
constitution entitled him to subpoena the person for the hearing. 
Both motions were denied.
     Detective Dennis Alexander of the narcotics unit of the Fort
Smith Police Department gave the only testimony at the hearing.  He
testified that he had assisted in the preparation of an affidavit
for a warrant to search room 11 at the Holiday Motel and a 1981
maroon Oldsmobile Cutlass bearing Oklahoma plates.  A copy of the
affidavit was introduced into evidence.
     The affidavit referred to information from a confidential
informant who had previously provided information about illicit
drug traffic in Fort Smith and whose information had led to six
arrests for possession or sale of crack cocaine.  The confidential
informant told police that appellant was dealing in crack cocaine
and that the informant was in the motel room with appellant during
the late night hours of July 25, 1994.  He observed several sales
of crack cocaine, observed appellant take some of the money and
place it under the seat of a 1981 maroon Oldsmobile Cutlass parked
in front of room 8, and observed a further quantity of crack
cocaine being offered for sale by appellant.  Police investigation
and surveillance of the motel revealed that room 11 was registered
to Tom Benton of 505 North 19th Street, Fort Smith, and that
appellant, on his last arrest report, had listed his address as 505
North 19th and his mother's name as Maggie Benton.
     Detective Alexander testified that he had participated in the
execution of the search warrant at 6:00 a.m. on July 26, 1994. 
Appellant, who had been sleeping and was the only person in the
room, opened the door for the police when they could not force it. 
Neither the police nor their drug-sniffing dog found any drugs in
the room.  The police opened the car door with a key found in the
room in a pair of pants.  The detective testified that the
appellant said the pants belonged to him.  Initially the police did
not find drugs in the automobile; the dog, however, alerted to the
dash around the stereo system.  Officers partially dismantled the
dash and disassembled a fuse or junction box beneath and to the
left of the brake pedal.  There they found a paper towel which held
three rocks of cocaine.
     Under cross-examination, Detective Alexander said that no
officers were outside the room when the confidential informant was
there but that officers constantly drove by to keep surveillance
from the time the informant left the room until the warrant was
served.  Appellant was not observed leaving the room during the
surveillance.  Detective Alexander also testified that the
affidavit or reports referred to a second person in the room with
Billings who had participated in the sales.  Appellant's counsel
asked the name of the second person, but the court sustained the
Stateþs objection on the grounds of relevancy.  Appellant's counsel
said he was attempting to show that the person in possession of the
drugs was the other person in the room.  The court appropriately
noted that no drugs were found in the room.
     Appellant moved to dismiss after the State rested, stating
that nothing showed that the vehicle belonged to him, no evidence
connected him with the vehicle, and the car keys could have
belonged to the other man in the room the previous night.  He
stated that he would like to have the other man present to testify
about ownership of the car.  The trial judge denied the motion and
found that the State had proven its case by a preponderance of the
evidence, noting that the keys were found in the pants and that the
cocaine was found in a vehicle over which appellant obviously had
control.
     Appellant's first point on appeal is that the evidence was
insufficient to support the finding that he violated the terms of
his suspended sentence.  On appeal of a revocation, the evidence
must be viewed in the light most favorable to the State.  Reese v.
State, 26 Ark. App. 42, 44, 759 S.W.2d 576 (1988).  Evidence that
is insufficient to support a criminal conviction may be sufficient 
to support a probation revocation.  Lemons v. State, 310 Ark. 381,
836 S.W.2d 861 (1992).  On appeal, we will not reverse unless the
trial courtþs findings are clearly against the preponderance of the
evidence, giving due regard to the trial courtþs superior position
to determine credibility of the witnesses and the weight to be
given their testimony.  Cavin v. State, 11 Ark. App. 294, 669 S.W.2d 508 (1984).      
     The issue here is similar to that in Harris v. State, 270 Ark.
634, 606 S.W.2d 93 (Ark. App. 1980), a revocation case where
police executing a warrant to search found marijuana on top of the
refrigerator and under the couch in Mr. Harrisþs apartment.  Mr.
Harris argued on appeal that the trial courtþs finding that he had
violated his probation was against the preponderance of the
evidence because there was no evidence linking him to the
contraband.  This court rejected his argument, stating that þ[t]he
evidence adduced at trial may not have been sufficient to convict
one charged with possession of a controlled substance, but it was
sufficient for the trial judge to determine that appellant had
violated the terms of his probation.þ  Harris v. State, 270 Ark. at
636.  In the case now before us, the evidence viewed in the light
most favorable to the State showed that appellant possessed a key
to an automobile in which police found cocaine upon executing a
warrant to search.  We hold that the trial courtþs decision to
revoke appellantþs suspended sentence was not clearly against the
preponderance of the evidence.     
     As his second and third points, appellant asserts that the
trial court erred in refusing to require disclosure of the
confidential informant and of the other person who was present when
the drug sale occurred.  Appellant contends that he was denied the
right to confront the confidential informant, whose information in
the affidavit might have been considered by the court as evidence
that appellant possessed cocaine.  The abstract of the court's
findings and ruling, however, clearly shows that appellant's
suspended sentences were revoked because he had the keys to a
vehicle in which cocaine was found.  Our supreme court has stated
that disclosure of an informantþs identity is not required where
the defendant was charged only with possession and the informant
merely supplied information leading to the issuance of the search
warrant.  Heard v. State, 316 Ark. 731, 876 S.W.2d 231 (1994).  In
the case now before us, where appellantþs suspended sentences were
revoked and the informant merely supplied information used in the
affidavit supporting the warrant to search, there was no
requirement to disclose the identity of the informant. 
     Similarly, appellant's request for the identity of another
person allegedly present in the room was not relevant to
appellant's violation of conditions of his suspended sentences.  He
argues that testimony by this other person could have shown that it
was not appellant, but this person, who had access to the keys and
ownership of the drugs.  His bare assertions, however, are
insufficient to preserve a challenge on appeal to the trial courtþs
discretionary power to exclude evidence.  Cf. Zinger v. State, 313
Ark. 70, 852 S.W.2d 320 (1993) (where defendant wanted to convince
the jury that another person might have committed the crime for
which he was being tried, evidence of commission of a similar crime
in another state was insufficient without more to warrant
admission).
     As his final point, appellant states that the revocations of 
both his parole and his suspended sentence for the same conduct
constituted a violation of the doctrines of double jeopardy and due
process.  Because he presents no argument or authority as to the
due process claim, we address only the double jeopardy argument,
dismissing the due process claim as speculative and not supported
by any reasonable argument or authority.  See Milholland v. State,
319 Ark. 604, 893 S.W.2d 327 (1995).  
     Appellantþs argument that the revocation of his parole and
suspended sentence for the same behavior violates double jeopardy
is without merit.  The revocation of appellantþs parole and the
revocation of his suspended sentence resulted in appellantþs being
punished for his original offenses; neither proceeding imposed a
separate punishment for the behavior that was the catalyst for the
revocation proceedings.  Neither parole revocation nor suspended
sentence revocation is a stage of a criminal prosecution, see
Lawrence v. State, 39 Ark. App. 39, 839 S.W.2d 10 (1992)(citing
Gagnon v. Scarpelli, 411 U.S. 788 (1973); and Pyland v. State, 302
Ark. 444, 790 S.W.2d 178 (1990)).  The Double Jeopardy Clause
protects defendants in criminal proceedings only against multiple
punishments or repeated prosecutions for the same offense. 
Lawrence, supra, (citing  United States v. Dinitz, 424 U.S. 600
(1976)).   Thus, appellant has no valid double jeopardy claim.  
     Affirmed.
     Cooper and Robbins, JJ., agree.