James Foster v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION I

JAMES FOSTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-232

DECEMBER 6, 2000

APPEAL FROM THE CRITTENDEN

COUNTY CIRCUIT COURT

[NO. CR-96-898R]

HONORABLE GERALD E. PEARSON,

CIRCUIT JUDGE

AFFIRMED

This is a no-merit appeal. On January 6, 1997, appellant James Foster entered a guilty plea to possession of a controlled substance with intent to deliver, for which he was placed on suspended imposition of sentence for ten years, conditioned on certain requirements of good behavior including not violating any law. The State filed a motion to revoke on November 5, 1998, asserting that appellant had violated the terms of his suspended imposition of sentence by being involved in a drug deal. Following a revocation hearing conducted on July 27, 1999, the trial court revoked the suspended imposition of sentence and instead sentenced appellant to a twenty-five-year prison term. A timely notice of appeal was filed with our court.

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) of the Rules of

the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motionto be relieved as counsel for the reason that the appeal is without merit. Counsel's motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal and a statement of the reasons why counsel considers there to be no point that might arguably support an appeal. Appellant was notified of his counsel's brief and motion and of his right to file points on appeal of his own, and appellant has responded by filing pro se points for reversal. Accordingly, the State has filed a responsive brief to the points filed by appellant. We have determined that appellant's counsel has substantially complied with the requirements of a no-merit brief and accordingly affirm the revocation and relieve counsel.

The facts giving rise to the motion for revocation and brought out in the revocation hearing were as follows, viewed in the light most favorable to the State. The narcotics division of the West Memphis Police Department arranged to purchase crack cocaine from an individual in West Memphis, Arkansas. A confidential informant was harnessed with a microphone for police surveillance and was given five twenty-dollar bills that had been photocopied by the police department. The police observed the confidential informant drive a car to a local car wash, and saw the informant's car approached by another vehicle, a green Pontiac Sunfire, occupied by two persons. One person exited the driver's side of the Pontiac, approached the confidential informant, and exchanged money for a small package thought to contain crack cocaine. The driver was later determined to be a Mr. Davis. Appellant was the passenger in the Pontiac.

As the Pontiac pulled away from the car wash, police officers stopped the car. Appellant was handed something by the driver, and appellant was seen thereafter reaching under the seat. Once in contact with the two occupants of the Pontiac, the officers searched under appellant's seat, locating a plastic bag containing 2.3 grams of crack cocaine and also locating four of the twenty-dollar bills. The crack that was sold to the informant and returned to the police weighed .769 grams. Appellant was arrested and jailed.

Appellant testified after the State presented its case and after his counsel's directed verdict motion was denied. Appellant was on parole at the time this happened. Appellant stated that he owned no vehicle but needed transportation that evening. According to appellant, Mr. Davis was visiting someone in the apartment next to appellant's girlfriend's apartment. Because he could not obtain taxi service, he paid Mr. Davis five dollars for a ride. Appellant maintained that he knew nothing about any drug transaction and did not realize until after it was over what had happened. When appellant saw the police coming, Mr. Davis threw "bills and stuff" at him, which he threw to the floorboard. He denied having any knowledge of the drug deal, and he asserted that he just put down whatever Mr. Davis had handed to him. Appellant admitted to having three prior felonies, two of which were for possession of cocaine.

At the conclusion of the revocation hearing, the trial court announced that the State had carried its burden of proof and that a revocation would be entered. Prior to sentencing, appellant made a statement to the trial court asking that the trial court consider that he was known as a drug user but that he was not a drug dealer; that he did not know what was happening; that the driver had pleaded guilty to his criminal charges and disclaimedappellant as an active participant; that he did not want to go back to jail; and that he had already been in jail for ten months.

The trial court entered a twenty-five-year sentence according to the sentencing guidelines. This appeal resulted.

Sufficiency of the Evidence

In a revocation proceeding, the State must prove a violation of a condition of the suspended imposition of sentence by a preponderance of the evidence. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). Evidence that is insufficient to sustain a conviction may be sufficient to sustain a revocation. Id. When appealing a revocation, the appellant has the burden to show that the trial court's findings are against the preponderance of the evidence. Shaw v. State, 65 Ark. App. 186, 986 S.W.2d 129 (1999). On appellate review, we uphold a revocation unless the trial court's findings are clearly against a preponderance of the evidence. Id.

We do not reach appellant's sufficiency-of-the-evidence argument. Appellant's counsel moved for directed verdict at the close of the State's case, but the directed-verdict motion was not renewed at the close of the evidence. This failure to renew the motion precludes our consideration of the sufficiency of the evidence to revoke his suspended imposition of sentence. Ark. R. Crim. P. 33.1(b) and (c). The rule specifically requires a defendant to move for dismissal or directed verdict at the close of all of the evidence if this motion was made at the conclusion of the State's case. This rule applies to revocation proceedings. Miner v. State, 70 Ark. App. 142, 15 S.W.3d 356 (2000), aff'd Miner v. State, Ark. , S.W.3d (October 12, 2000).

Even were we to consider the issue, the State presented sufficient evidence of appellant having violated a term of his suspension, demonstrating its proof by a preponderance of the evidence. The preponderance of the evidence turns largely on the credibility of the witnesses, and it is an issue that we defer to the trial court as the finder of fact. See Smith v. State, 9 Ark. App. 55, 652 S.W.2d 641 (1983). Thus, even though appellant denied his complicity, the trial judge did not have to believe appellant's testimony, as he was the person most interested in the outcome. See, e.g., Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999).

Evidentiary Objections

There were several objections decided adversely to appellant at the revocation hearing. The objections were to (1) hearsay testimony regarding what Mr. Davis said; (2) the sufficiency of the foundation for introducing into evidence the drugs purchased by the informant; (3) testimony regarding appellant's extensive criminal history; and (4) the relevancy of a prior conviction for being a felon in possession of a firearm. Those objections could not form the basis of a meritorious appeal, though, because the Arkansas Rules of Evidence do not apply to revocation proceedings. Ark. R. Evid. 1101(b)(3); see also Russell v. State, 25 Ark. App. 181, 753 S.W.2d 298 (1988). Even were we to consider each of the objections, we agree with appellant's counsel that there would be no meritorious ground for reversal.

Lack of Jurisdiction

Appellant asserts in his pro se points that because this hearing was held outside the permissible time limitations, the trial court was powerless to revoke. A revocation hearing must be conducted within sixty days after an appellant's arrest pursuant to Ark. Code Ann. § 5-4-310(b)(2) (Repl. 1997), but this statutory section does not apply when the arrest is for another charge while serving a suspended sentence. See Reynolds v. State, 282 Ark. 98, 666 S.W.2d 396 (1984); Walker v. State, 262 Ark. 215, 555 S.W.2d 228 (1977). Admittedly, appellant was arrested on October 8, 1998, for the new charge of possession of cocaine with intent to deliver that formed the underlying basis of the revocation, a charge that was "undisposed of" at the time of the revocation hearing, according to the prosecutor's remarks to the trial court to which appellant agreed.

Appellant asserts in his pro se points for reversal that this charge was nol prossed by the time that the petition to revoke was filed (November 5, 1998), but there is no evidence in the record to support that assertion. The burden is on the appellant to bring up a record sufficient to demonstrate that the trial court is in error. Fariss v. State, 303 Ark. 541, 798 S.W.2d 103 (1990). Therefore, this could not form the basis of a meritorious appeal.

Extraneous Testimony

Appellant directs us to his counsel's abstract, which appears to have excess testimony not found in the record. Appellant concludes by stating that this error is so egregious that we should question the validity of any brief filed by this attorney on behalf of any appellant. Counsel's abstract includes the testimony of a narcotics officer and of appellant, the only witnesses at this hearing. In the text of the abstract of the officer's testimony, the followingrecross-examination conducted by appellant's counsel is submitted:

This was bullshit. I asked the son-of-a-bitch had he ever caught a ride with anyone and he said no. I have never caught a ride with anyone. I am twenty-nine (29) years old. I have never caught a ride with anyone to the store, the swimming pool or anywhere since I was old enough to earn my own money I've always had my own car.

The record reflects that the recross-examination elicited all of the above-stated information, except the first and second sentences. Nowhere does such an exchange take place on the original record as provided by the court reporter.

We find this portion of the abstract bizarre, but we have determined that it neither adds nor detracts from the issue of whether appellant's appeal holds merit such that appellant suffered no prejudice by its inclusion. This court will not reverse in the absence of prejudice. Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).

We hold that appellant's counsel substantially complied with the requirements found in Anders, supra and Ark. R. Sup. Ct. 4-3(j). Therefore, we affirm appellant's revocation and grant counsel's motion to be relieved.

Hart and Neal, JJ., agree.