Paul A. Arsola v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION I

PAUL A. ARSOLA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-875

March 6, 2002

AN APPEAL FROM SEBASTIAN COUNTY CIRCUIT COURT

CR96-934 & CR98-215

HONORABLE JAMES R. MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

This is a revocation of suspended sentence case in which Paul Arsola was sentenced to ten years in the Arkansas Department of Correction (ADC) for violating the terms of his suspended sentence. On appeal, Arsola contends that there is insufficient evidence that he violated the terms and conditions of his suspended sentences, and thus, the trial court should not have granted the petition to revoke. We disagree and affirm.

On October 28, 1996, in case number 96-934, Paul Arsola was charged with the offenses of breaking and entering and theft of property. On November 15, 1996, he pled guilty to the charges, and on April 14, 1997, he was sentenced to six years in the ADC with suspended imposition of sentence for five years. On March 9, 1998, in case number 98-215, Arsola was charged with the offenses of residential burglary and theft of property, and after pleading guilty, he was sentenced to nine years in the ADC with eleven years suspended imposition of sentence.

On March 6, 2001, the State filed a petition to revoke and show cause, alleging thecommission of battery in the first degree and felon in possession of a firearm. On April 25, 2001, a hearing was held to address the petition to revoke. Dennis Reynolds, a bouncer at the Mi-Wuk Club in Fort Smith, Arkansas, testified as to the events related to his shooting on February 17, 2001. Reynolds stated that after Arsola arrived at the Mi-Wuk Club, his boss asked him to "keep an eye on [Arsola]" because he was using foul language toward people and was intoxicated. Reynolds eventually asked Arsola to "watch his language" at which time Arsola "jumped up out of his chair [and] got in [Reynolds's] face." Reynolds then proceeded to remove Arsola from the club, and the two engaged in a scuffle. Reynolds stated that, while he had a hold of Arsola and was walking him backwards, he heard three shots and that they were "coming from in front of [him], point blank range." Reynolds observed that he had been shot in the neck and as he sat down in the floor, Arsola "jumped over the pool table and ran out the door."

Two other witnesses, Melissa Larimore and Crystal Mackey, testified that they knew and recognized Arsola and that they saw him at the club on the night in question. Both witnesses stated that they observed the altercation between Reynolds and Arsola, that they heard the gunshots, and that the shots came from the direction in which Reynolds and Arsola had been scuffling. Jonathan Perry testified that Arsola is his brother and that on February 17, 2001, he and his brother had gone out drinking but that they had not been to the Mi-Wuk club that evening.

Arsola moved for directed verdict and to dismiss; however, the court denied the motions. Arsola renewed the motions at the close of the evidence, claiming that the State failed to show that anybody actually saw a gun or saw Arsola shoot anybody. The trial court denied the motion and stated that the evidence showed that Arsola was at the Mi-Wuk Club on the night in question, that he was intoxicated and highly volatile, that he had been identified by two independent witnesses, and that it did not find Perry's testimony to be credible. The trial court then found that the State hadmet its burden of proof by a preponderance of the evidence and sentenced Arsola to a period of ten years in the ADC.

On appeal, Arsola argues that there was insufficient evidence to prove that he had violated the terms and conditions of his suspended sentences. He claims that the trial court should not have considered the fact that Arsola was "in an institution where he was not supposed to be" because it was not alleged by the State. In addition, Arsola claims that there was insufficient evidence to place a firearm in his possession and that there was no evidence that he caused the injury to Reynolds by the use of a firearm. The State contends that there is sufficient evidence that Arsola violated the conditions of his suspended sentence by possessing a firearm and battering Reynolds with it. Futhermore, the State argues that if this court finds that the trial court's ruling is not supported by a preponderance of the evidence, Arsola's revocation should still be affirmed because the facts show that he committed the lesser-included offense of third degree battery, which is also a ground sufficient to revoke his suspended sentence.

When appealing a revocation, the defendant has the burden of proving that the trial court's findings are clearly against the preponderance of the evidence. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). To revoke suspension of sentence, the State has the burden of proving that the defendant inexcusably violated the terms and conditions of his suspension by a preponderance of the evidence, and this court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Ark. Code Ann. § 5-4-309 (Supp. 1999); Rudd, supra; Stinnett v. State, 63 Ark. App. 72, 973 S.W.2d 826 (1998). For a defendant's suspended sentence to be revoked, the State need only prove that the defendant committed one violation of the conditions and terms of his suspension. Rudd, supra.

Reynolds, the victim, testified that Arsola was present at the Mi-Wuk Club, that he wasfamiliar with Arsola because he had to ask him to leave the club a month before the incident, that they engaged in a face-to-face scuffle, that he heard gunshots at point blank range, and that after he was shot, Arsola ran out the door. Two eyewitnesses placed Arsola at the Mi-Wuk Club on February 17, 2001, and both witnesses stated that Arsola engaged in an altercation with Reynolds and that they heard gunshots come from Arsola's and Reynolds's direction. The trial court stated in its decision that it did

not believe Mr. Perry's testimony as being credible [and that] notwithstanding the fact that neither of these witnesses can place the weapon in Mr. Arsola's hands, that both of the independent witnesses indicate that the sound of the weapon came from the two scuffling men. Mr. Reynolds had indicated that...the sound came from directly in front of him.

This court will defer to the trial court's superior position on determinations of credibility in suspended sentence revocation hearings. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Moreover, circumstantial evidence may be sufficient to revoke a defendant's probation or suspended sentence. See Id.; Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Evidence that may be insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Lamb, supra; see Ark. Code Ann. § 5-4-309 (Supp. 1999). The trial court determined that Perry's testimony was not credible and that the testimony of Reynolds and the two eyewitnesses supported the finding that Arsola had violated the terms and conditions of his suspended sentence. Consequently, we find that the trial court's decision is not clearly against the preponderance of the evidence and affirm Arsola's revocation based on first degree battery and felon in possession of a firearm.

Affirmed.

ROBBINS AND CRABTREE, JJ., agree.