Palmer v. State

Jerrard Lamont PALMER v. STATE of Arkansas

CA CR 97-315                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions I and IV
                Opinion delivered January 7, 1998


1.   Criminal procedure -- revocation proceedings -- burden on State --
     appellate review. -- To revoke probation or a suspended sentence,
     the burden is on the State to prove a violation of a condition
     by a preponderance of the evidence; on appellate review, the
     trial courtþs findings will be upheld unless they are clearly
     against the preponderance of the evidence.

2.   Criminal procedure -- revocation proceedings -- evidence of nonpayment --
     shifting burden. -- Once the State introduces evidence of
     nonpayment of fines or costs, the defendant then bears the
     burden of going forward with some reasonable excuse for his
     failure to pay.

3.   Criminal procedure -- revocation proceedings -- finding of nonpayment
     supported revocation -- not clearly against preponderance of evidence. --
     Where the State introduced, without objection, documentary
     evidence showing a violation of the terms and conditions
     related to payment of fines and costs, and appellant offered
     no reasonable excuse to the trial court and only raised the
     issue in his appeal as a closing afterthought, with no
     supporting authority, the appellate court held that the trial
     courtþs finding of nonpayment of fines and costs supported the
     revocation of appellant's suspended sentence and was not
     clearly against the preponderance of the evidence. 

4.   Criminal procedure -- revocation proceedings -- not criminal prosecution -
     - only preponderance of evidence required. -- In a probation
     revocation hearing, a trial has already been held, and the
     defendant convicted; likewise, a hearing on the revocation of
     a suspended imposition of sentence is not a criminal
     prosecution, and only the lowest showing of proof available,
     a preponderance of the evidence, is required.

5.   Appeal & error -- deference to trial court on credibility determinations. -
     - The appellate court defers to the trial courtþs superior
     position on determinations of credibility; further, the trial
     court, sitting as a finder of fact, is entitled to the same
     deference as a jury. 

6.   Criminal procedure -- revocation proceedings -- constructive-possession
     analysis not applicable. -- The complete constructive-possession
     analysis does not apply to revocation proceedings.

7.   Criminal procedure -- revocation proceedings -- "reasonable doubt" not
     applicable. -- The theories of joint occupancy and constructive
     possession allow circumstantial evidence, when it sufficiently
     excludes all other reasonable hypotheses, to pass beyond the
     hurdle of "reasonable doubt" to support a criminal conviction;
     "reasonable doubt," however, has no application in revocation
     proceedings, which are governed by a preponderance-of-the-
     evidence standard.

8.   Criminal procedure -- revocation proceedings -- appellant's suspicious
     behavior was relevant. -- Appellant's suspicious behavior was
     relevant to the revocation inquiry; the time of day of the
     arrest was relevant to the inquiry because a parked car with
     three occupants who are observed for several minutes could
     reasonably amount to suspicious circumstances at that time of
     day; the fact that an officer observed appellant and the other
     occupants of the vehicle "ducked down" is a furtive or
     suspicious action that amounts to relevant circumstantial
     evidence; the inconsistent accounts of the three suspects to
     the police during the encounter created an inference of
     suspicious behavior; further, the fact that the arrest took
     place in a high-crime area was relevant to the revocation
     determination.

9.   Criminal procedure -- revocation proceedings -- presence of contraband in
     close proximity was relevant. -- The presence of the contraband in
     close proximity to appellant was relevant circumstantial
     evidence supporting the trial court's revocation decision.

10.  Criminal procedure -- revocation proceedings -- prior conviction for
     similar offense was relevant. -- The fact that appellant had a
     prior conviction for a similar offense was relevant in the
     revocation decision; while appellant's prior offenses might
     have been excluded in a traditional criminal trial, such
     evidence may be admissible at a revocation hearing.

11.  Criminal procedure -- revocation proceedings -- trial court's decision to
     revoke appellant's suspended sentence was not clearly against preponderance
     of evidence. -- Based on the relevant facts, the supreme court's
     holding that revocation is not a stage in a criminal
     prosecution for Sixth Amendment purposes, statutory guidance
     for revocation proceedings, and the implications of its own
     limited standard of review, the appellate court held that the
     trial court's decision to revoke appellant's suspended
     sentence based on a cocaine charge was not clearly against the
     preponderance of the evidence and affirmed it.


     Appeal from Sebastian Circuit Court; Don R. Langston, Judge;
affirmed.
     Jo Ellen Carson, Deputy Public Defender, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.

     Terry Crabtree, Judge.
     On February 23, 1994, appellant Jerrard Lamont Palmer pled
nolo contendere to committing a terrorisitic act -- firing three
shots at a residence during an altercation -- in violation of Ark.
Code Ann.  5-13-310 (1993), for which he received a suspended
sentence.  In July 1994, the State petitioned the court to revoke
his suspended sentence based on pending drug and weapons charges. 
The State amended its petition to revoke in September 1994 to
include a charge of battery in the second degree and failure to pay
costs and fines.  On September 28, 1994, appellant pled nolo
contendere to the charges of felon in possession of a firearm,
possession of cocaine with intent to deliver, possession of
marijuana with intent to deliver, and battery in the second degree. 
The trial court again saw fit to suspend much of the imposed
sentences, contingent on standard conditions.  On July 11, 1996,
appellant was again charged with possession of cocaine with intent
to deliver, and the State again petitioned to revoke his suspended
sentences based on the new drug charge and failure to pay costs and
fines.  From that revocation proceeding comes this single-issue
appeal.  Appellant argues that the trial courtþs decision is not
supported by sufficient evidence.  
     To revoke probation (or a suspended sentence), the burden is
on the State to prove a violation of a condition by a preponderance
of the evidence, and on appellate review the trial courtþs findings
will be upheld unless they are clearly against the preponderance of
the evidence.  Lemons v. State, 310 Ark. 381, 836 S.W.2d 861
(1992).  We hold that the trial courtþs findings are not clearly
against the preponderance of the evidence, and therefore we must
affirm. 
     The facts in the present case were developed at the revocation
hearing through the testimony of two police officers, one of whom
noticed a car parked for several minutes at the Ragon Courts
apartment complex in Fort Smith at 4:25 a.m. on July 11, 1996.  On
cross-examination, the officer explained that he was patrolling the
apartments because of recent reports of vehicle thefts in the area. 
Officer Hays observed three persons þducked downþ in the car for
several minutes.  He then approached the car to ask the occupants
what they were doing.  The officer observed an empty bottle of gin
in the back seat and arrested appellant for contributing to the
delinquency of a minor.  The officer also arrested the other two
occupants of the car, charging each with  minor in possession of
alcohol.  While interrogating the suspects individually, each gave
conflicting accounts of why they were present in the parking lot. 
     Officer Perceful arrived on the scene to assist Officer Hays
in the arrest.  Officer Perceful then conducted an inventory search
of the vehicle finding, in plain view, a plastic pill bottle on the
front floorboard near the door on the driverþs side (appellant was
seated in the front passenger-side seat).  The bottle contained
.782 grams of cocaine.  
     A ledger sheet that reflected appellantþs nonpayment of costs
and fines was introduced at the revocation hearing, without comment
or objection.  
     The first piece of evidence introduced, without objection, at
the revocation hearing was a þCriminal Judgment and Payment
Inquiry.þ  The ledger dated August 9, 1996, reflects the fines and
court costs imposed after appellantþs first criminal plea to
committing a terroristic act.  Payments were scheduled at $50 per
month and were to begin on March 15, 1994.  The ledger reflects
that for two-and-a-half years, no money had been paid toward the
total $895.75 balance due.  No testimony regarding the nonpayment
of fines was introduced by either side, and the extent to which the
trial judge relied on the nonpayment of fines for the revocation
decision is unclear in his ruling.  Further, appellantþs argument
regarding the nonpayment of fines as a proper basis for revocation
is limited to the final two sentences of his brief, which
characterizes imposing a twelve-year prison term based on
nonpayment of fines as þcruel and unusual punishment,þ without
reference to any authority.
     We acknowledge the Supreme Courtþs holding on this issue in
Bearden v. Georgia, 461 U.S. 660 (1983), and our own supreme
courtþs holding in Drain v. State, 10 Ark. App. 338, 664 S.W.2d 484
(1984), both of which seek to avoid invidious discrimination
against indigent defendants.  However, we find the holdings in
Baldridge v. State, 31 Ark. App. 114, 789 S.W.2d 735 (1990), and
Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988), controlling
under the present facts.  
     Here the State introduced, without objection, documentary
evidence showing a violation of the terms and conditions related to
payment of fines and costs.  Once such evidence is introduced, the
defendant then bears the burden of going forward with some
reasonable excuse for his failure to pay.  Id.  Here the defendant
offered no reasonable excuse to the trial court and only referenced
the issue in his appeal as a closing afterthought, with no
supporting authority.  Accordingly, we hold the trial courtþs
finding of nonpayment of fines and costs supports the revocation
and is not clearly against the preponderance of the evidence. 
     Appellant argues on appeal that the facts relating to his
possession of cocaine, under the doctrine of joint possession, are
insufficient evidence upon which to revoke his suspended sentence. 
While his argument might be more persuasive if this were an appeal
of a criminal trial, it is not.  As our supreme court recently
explained in a different context, þin a probation revocation
hearing, a trial has already been held, and the defendant
convicted.þ  Dority v. State, 329 Ark. 631, 634, 951 S.W.2d 559,
561 (1997) (holding that a revocation hearing is not a stage of a
criminal prosecution for purposes of sixth amendment speedy-trial
guarantees).  Likewise, a hearing on the revocation of appellantþs
suspended imposition of sentence is not a criminal prosecution, and
the legislature has seen fit to require only the lowest showing of
proof available -- a preponderance of the evidence.  See Ark. Code
Ann.  5-4-309(d) (1993).   
     The burden of proof on the State in a revocation hearing is to
prove the violation of a condition of probation by a preponderance
of the evidence.  Tipton v. State, 47 Ark. App. 187, 188, 887 S.W.2d 540, 542 (1994).  The appellate court defers to the trial
courtþs superior position on determinations of credibility. 
Lemons, supra.  Further, the trial court, sitting as a finder of
fact, is entitled to the same deference as a jury. 
     It is important to remember that jurors do not and
need not view each fact in isolation, but rather may
consider the evidence as a whole.  The jury is entitled
to draw any reasonable inference from circumstantial
evidence to the same extent that it can from direct
evidence.  [Citation omitted.]  A jury may accept or
reject any part of a witness's testimony, and its
conclusion on credibility is binding on the appellate
court.  Winters v. State, 41 Ark. App. 104, 848 S.W.2d 441 (1993).

White v. State, 47 Ark. App. 127, 131, 886 S.W.2d 876, 879 (1994).
     Further, the complete constructive-possession analysis does
not apply to revocation proceedings.  For example, Billings v.
State, 53 Ark. App. 219, 921 S.W.2d 607 (1996), held that a
revocation appellantþs possession of a key to a car containing
contraband was sufficient evidence to support the revocation.  In
another case a jury acquitted the appellant of battery, but a trial
court revoked the appellantþs suspended sentence based on the same
evidence.  In affirming the revocation, the supreme court
explained:
     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, supra.  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. 

Kirby v. State, 52 Ark. App. 161, 164, 915 S.W.2d 736, 738-39
(1996).
     Ellerson v. State, 261 Ark. 525, 549 S.W.2d 495 (1977),
further illustrates the appropriate quantum of proof required to
uphold a revocation.  In Ellerson, the supreme court affirmed a
revocation based on the uncorroborated testimony of an accomplice,
noting that such a lack of corroboration would be fatal to the
Stateþs case in a criminal trial, but the same quality or degree of
proof is not required for the exercise of the courtþs discretion to
revoke a suspended sentence.  Id. at 531, 549 S.W.2d 498.   
     The dissent discusses at great length the twin theories of
joint occupancy and constructive possession.  Both are valuable and
well-developed legal theories used to guarantee the reliability of
criminal convictions based solely on circumstantial evidence. 
However, we are not convinced from a reading of our prior case law
that such safeguards are necessary in a revocation inquiry.  Joint
occupancy and constructive possession allow circumstantial
evidence, when it sufficiently excludes all other reasonable
hypotheses, to pass beyond the hurdle of þreasonable doubtþ to
support a criminal conviction.  As we have attempted to explain at
length here, þreasonable doubtþ has no application in revocation
proceedings, which are governed by a preponderance of the evidence
standard.
     Based on the supreme courtþs holding in Dority, supra, that
revocation is not a stage in a criminal prosecution for Sixth
Amendment purposes, the legislatureþs choice to require the lowest
quantum of proof to support a revocation, our own limited standard
of review, which gives significant deference to the trial courtþs
determination of credibility, and the many cases that hold that
evidence insufficient to convict may be sufficient to revoke
(Lemons, Ellerson, and Kirby, supra), we find the following facts
relevant to support our holding that the trial courtþs revocation
based on the cocaine charge was not clearly against the
preponderance of the evidence. 
     First, appellantþs suspicious behavior is relevant to our
inquiry.  Several reasonable inferences can be drawn from
circumstantial evidence that officers observed at the scene. 
Appellant was encountered at approximately 4:25 a.m.  The time of
day of an arrest is relevant to the inquiry because a parked car
with three occupants who are observed for several minutes could
reasonably amount to suspicious circumstances at that time of day. 
See Bailey v. State, 307 Ark. 448, 821 S.W.2d 28 (1991).  Also, the
fact that the officer observed appellant and the other occupants of
the vehicle þducked downþ is a furtive or suspicious action that
amounts to relevant circumstantial evidence.  See Plotts v. State,
297 Ark. 66, 759 S.W.2d 793 (1988).  Additionally, the inconsistent
accounts of the three suspects to the police during the encounter
create an inference of suspicious behavior.  See Mings v. State,
318 Ark. 201, 884 S.W.2d 596 (1994) (discussing at length the
improbable nature of appellantsþ claim that they were going to
Branson to see the shows when none of them were carrying adequate
clothing for a week-long visit).  Further, the fact that the arrest
took place in a high-crime area is relevant to the revocation
determination.  Greene v. State, 324 Ark. 465, 467, 921 S.W.2d 951,
952 (1996).
     Secondly, the presence of the contraband in close proximity to
appellant is relevant circumstantial evidence supporting the trial
courtþs revocation decision.  See Kilpatrick v. State, 322 Ark.
728, 733, 912 S.W.2d 917, 920 (1995); Bond v. State, 45 Ark. App.
177, 180-82, 873 S.W.2d 569, 571-72 (1994).
     Finally, the fact that appellant had a prior conviction for a
similar offense is relevant in a revocation decision.  While
appellantþs prior offenses might have been excluded in a
traditional criminal trial, such evidence may be admissible at a
revocation hearing.  Fitzpatrick v. State, 7 Ark. App. 246, 647 S.W.2d 480 (1983) (holding that relevant evidence inadmissible at
a criminal trial may be admissible at a revocation hearing).     
     Based on these three factors, the holding in Dority, statutory
guidance for revocation proceedings, and the implications of our
own standard of review, we hold that the trial courtþs decision to
revoke appellantþs suspended sentence based on the cocaine charge
is not clearly against the preponderance of the evidence, and
therefore must be affirmed.  
     Affirmed.  
     Arey and Rogers, JJ., agree.
     Robbins, C.J., Neal, and Roaf, JJ., dissent.

             Andree Layton Roaf, Judge, dissenting.

     I agree with the prevailing judges that Jerrard Palmer is
certainly no Boy Scout.  However, I do not agree that the State met
its burden of proving, by a preponderance of the evidence, that
Palmer was in constructive possession of the cocaine found in the
automobile in which he was a passenger with two others.  Because
this was the sole basis stated by the trial court for revoking
Palmerþs suspended sentence, I would reverse.
     Although the State also alleged in its petition to revoke that
Palmer failed to pay costs and fines, the prosecutor merely
introduced, without comment, a "ledger" reflecting that Palmer had
failed to pay the fines and costs.  The record reflects that the
State uttered not a single word about this ledger or about Palmer's
failure to pay costs, either as testimony or in argument, and that
the trial court never mentioned the failure to pay in pronouncing
the following ruling:  

     The Court finds by a preponderance of the evidence that
     the defendant possessed Cocaine With Intent to Deliver on
     July the eleventh, 1996.  He was in the vehicle and the
     cocaine was found in the vehicle. . . . And there are
     grounds to revoke the suspended portion of [Palmer's]
     sentences.
     Thus, even the record is devoid of any basis on which this
court can affirm for failure to pay costs.  The State, to its
credit, does not even suggest such a disposition in its brief,
undoubtedly because the record is clear -- the trial court made no
finding of nonpayment of fines and costs.  Indeed, not one word
about failure to pay was spoken by anyone at Palmer's hearing, and
we do not conduct a de novo review of revocation proceedings.
     As to the finding that Palmer was in possession of cocaine, I
cannot agree that this is supported by any evidence, much less a
preponderance of the evidence.  For, although the State's burden in
a revocation proceeding is less than for a criminal conviction, the
State must still put forth some evidence of the offense, and we
must still look to our established precedents to determine what
that evidence should consist of.  In a joint-occupancy situation,
additional linking factors must be present before a defendantþs
probation may be revoked.  Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996) (appellant possessed a key to an automobile in
which police found cocaine, and was the only person present when
the search warrant was executed).
     The factors outlined in the prevailing opinion -- three men
"ducked down" in a vehicle parked at an apartment complex in the
early morning hours -- may have justified an investigatory stop. 
The "inconsistent" statements allegedly given by the three young
men -- all said they were just visiting the complex, two said they
had just arrived, and one stated they were about to leave -- may
have justified further inquiry.  Discovery of an empty bottle of
gin in the back seat of the car in which Palmer was sitting with a
minor and another adult may have justified Palmer's arrest for
contributing to the delinquency of a minor, even though it is just
as likely that the empty bottle could have been intended for use
with the bottle rockets that were also discovered in the car. 
However, none of these factors serve to link Palmer to a small
plastic pill bottle, found next to the driver's side door of the
car after the driver, who was the last of the three to be taken
from the car, had exited.  No evidence was presented that Palmer
was anything other than a passenger in the car.  There was no
testimony that he made any suspicious moves before leaving the car,
that he owned the car, had keys to the car, or proof of any other
factor suggesting that he "exercised care, control, and management
over the contraband," as required in a joint-occupancy case.  See
Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995);  Plotts v.
State, 297 Ark. 66, 759 S.W.2d 793 (1988).  
     There is certainly no lack of guidance for this court or for
the State to determine what constitutes the requisite linking
factors.  In Plotts, supra, the supreme court first set out the
linking factors to be considered in cases involving vehicles
occupied by more than one person: (1) whether the contraband is in
plain view; (2) whether the contraband is found with the accused's
personal effects; (3) whether it is found on the same side of the
car seat as the accused was sitting or in near proximity to it; (4)
whether the accused is the driver of the automobile, or exercised
dominion and control over it; and (5) whether the accused acted
suspiciously before or during arrest.  In affirming Plotts's
conviction for possession of marijuana with intent to deliver, the
court found sufficient linking factors where Plotts owned the car,
a fully stuffed clothes bag with a plastic bag containing green
vegetable material protruding out of it was in plain view in the
back seat, and Plotts made a suspicious statement concerning drugs
when he was asked to consent to a search of the car.
     A review of the numerous post-Plotts cases involving the joint
occupancy of a vehicle in which contraband has been found yields no
case in which a conviction or revocation has been upheld with
linking factors so insubstantial as in the case before us.  See
Kilpatrick v. State, 322 Ark. 728, 912 S.W.2d 917 (1995) (appellant
was the only person to drive the car on the day of the arrest,
testified that he had thoroughly cleaned the car before using it,
and contraband was found in plain view between the driver and
passenger seats); Mings v. State, 318 Ark. 201, 884 S.W.2d 596
(1994) (numerous additional factors cited linking three appellants
to 11.7 pounds of cocaine found hidden in a motor home leased by
two of them and driven by the third); Littlepage v. State, 314 Ark.
361, 863 S.W.2d 276 (1993) (numerous containers of cocaine found in
the vehicle appellant was driving, his fingerprints were found on
an envelope containing baggies with cocaine residue, drug
paraphernalia was found in a console next to appellant); Kastl v.
State, 303 Ark. 358, 796 S.W.2d 848 (1990) (conviction for minor in
possession of alcohol reversed where appellant was a passenger in
a car with four others, a six-pack of beer was found lying in hatch
area of vehicle behind her and accessible to her, appellant had
smell of intoxicating alcohol about her person, and beer cans were
found lying beside the vehicle); Bond v. State, 45 Ark. App. 177,
873 S.W.2d 569 (1994) (both appellants linked to contraband where
pipe was found in plain view in immediate proximity to both,
marijuana was found in back seat behind driver and accessible to
both driver and passenger, a noticeable odor of marijuana was in
the car, and both driver and passenger appeared glassy-eyed);
Haygood v. State, 34 Ark. App. 161, 807 S.W.2d 470 (1991) (both
driver and passenger linked to cocaine found in vehicle where
cocaine was in gym bag in back seat right beside passenger and also
in the driver's immediate access, and driver of vehicle also had
cocaine in a medallion around his neck); Johnson v. State, 35 Ark.
App. 143, 814 S.W.2d 915 (1991) (appellant was driver of car from
which a bag of cocaine was dropped and exhibited suspicious
behavior by speeding away after being stopped); Nowden v. State, 31
Ark. App. 266, 792 S.W.2d 621 (1990) (appellant was driver of a
vehicle in which an open sack of marijuana was found in plain view
on the passenger side of the floorboard with no console or barrier
between the seats, and appellant appeared to be nervous); Booth v.
State, 10 Ark. App. 216, 662 S.W.2d 213 (1984) (conviction reversed
where appellant was a passenger in a car in which marijuana was
discovered locked in the trunk and there was no evidence that he
had keys to the car, and no proof of his relationship with the
driver or length of time they had been together).  In fact, the
linking factors in the instant case are similar, but far less
compelling than in Cerda v. State, 303 Ark. 241, 795 S.W.2d 358
(1990), in which the supreme court reversed a criminal conviction
where the contraband was not in plain view, on appellant's person,
or in his immediate proximity, and appellant was not the owner of
the vehicle or in control of it, even though appellant was
extremely nervous and he and the joint occupant told conflicting
stories.  
     Although the prevailing opinion seeks to distinguish these
authorities because they involve appeals from criminal convictions
rather than revocation proceedings, Billings, supra, which did
involve a revocation proceeding, cannot be so easily ignored.  In
Billings, the affirmance was clearly based upon the appellant's
possession of a key to the automobile parked outside his motel
room, and in which cocaine was found -- strong evidence that the
appellant "exercised dominion and control" over the vehicle.  
     Here, the preponderance of the evidence -- the greater weight
of the evidence -- the size of the bottle, location where it was
found, the "hump" described by officers as separating the front
floor board, the failure to connect Palmer to the vehicle in any
way, and the fact that the driver exited last, suggests that the
driver, not Palmer, possessed the easily concealed pill bottle. 
However, as the trial court said in finding that Palmer possessed
cocaine with intent to deliver, "[h]e was in the vehicle and the
cocaine was found in the vehicle."  This was sufficient for the
trial court and, sad to say, is also sufficient for the majority to
send this man to prison for twelve years.  Perhaps the State would
have prevailed had it presented evidence on Palmer's failure to pay
his costs or had it pursued the charge of contributing to the
delinquency of minors.  However, on appellate review, we must
decide the case based on the record before us, not what the State
might have or should have done.  Here, the State simply failed to
meet its burden of linking Palmer to the contraband, and failed to
go forward with its case on the failure to pay costs.  Even though
the State has a lesser burden of proof in parole revocation
hearings, I am aware of no authority that excuses the State from
the most fundamental precept in our adversary system of justice:
that you must make your case in order to prevail.  I would reverse.
     Robbins, C.J., and Neal, J., join.