Gregory L. Bolin v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 02-192

October 23, 2002

GREGORY L. BOLIN APPEAL FROM SEBASTIAN COUNTY

APPELLANT CIRCUIT COURT, FORT SMITH DISTRICT

VS.

HONORABLE JAMES R. MARSCHEWSKI,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

In February 1999, Gregory Bolin pleaded nolo contendere to two counts of commercial burglary and one count of theft of property. He was sentenced to serve ten years with nine suspended. In August 2001, the trial court revoked appellant's suspended sentence, finding that he had committed the offense of felony fleeing. Appellant argues on appeal that there was insufficient evidence that he violated the terms and conditions of his suspended sentence. We disagree and affirm.

On August 19, 2001 at 2:50 a.m., Lavaca police officer Randy Dean observed a brown Ford Bronco. He testified that when it pulled out onto the road, it crossed the pavement almost completely before pulling back into the proper lane, almost turning over in the process. As he prepared to pull the vehicle over, it sped away from him. It passed two cars on a double-yellow line nearly forcing them off the road, went through an intersection without slowing, and reached speeds up to ninety miles per hour before sliding into a ditch. The driver of the vehicle ran from the scene leaving two passengers behind. Officer Dean ordered the driver to stop running, and the driver turned and looked at him before fleeing. Officer Dean testified that he recognized appellant as the driver and that he was familiar with appellant as he had arrested him many times in the past.

Nick Spicer, the owner of the vehicle and one of the passen gers that night, testified that he did not remember who was driving his vehicle because he had passed out, but that he had dropped appellant off with Kim Marshall at around 10:00 p.m. Kim Marshall, Spicer's girlfriend, testified that appellant went home with her that evening around 10:00 p.m., that she fell asleep before midnight, and that appellant was at her home when she woke the next morning. Appellant denied that he was the driver of the vehicle and testified that he was asleep at Marshall's house.

Under Ark. Code Ann. § 5-54-125(a) (Repl. 1997), if a person knows that his immediate arrest is being attempted by a police officer, it is his duty to refrain from fleeing, either on foot or by means of any vehicle. A person commits the offense of felony vehicular fleeing if, under circumstances manifesting extreme indifference to the value of human life, he purposely operates the vehicle in such a manner to create a substantial danger of death or serious physical injury to another person or persons. Ark. Code Ann. § 5-54-125(d)(1) (Repl. 1997).

In a revocation proceeding, the burden is on the State to prove a violation of the conditions of suspension by a preponder ance of the evidence. Lewis v. State, 336 Ark. 469, 986 S.W.2d 95 (1999). On appeal, a trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Appellant's sole argument on appeal is that the police officer should not have been believed. He contends that there is a question as to whether appellant was actually the driver of the vehicle based on appel lant's own denial and the testimony of his two unimpeached witnesses. We defer to the trial court's superior position to decide issues of credibility; the trier of fact is free to believe or disbelieve all or part of any witness's testimony. Strom v.State, 348 Ark. 610, 74 S.W.3d 233 (2002). There is no reason the trial court could not believe Dean's testimony.

Affirmed.

Hart and Griffen, JJ., agree.