William B. Cantrell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

WILLIAM B. CANTRELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-203

OCTOBER 9, 2002

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT,

GREENWOOD DISTRICT

[NO. CR-2000-107-G]

HONORABLE JOE MICHAEL

FITZHUGH, JUDGE

AFFIRMED

Appellant William Brian Cantrell appeals the revocation of his suspended imposition of sentence. The appellant pleaded nolo contendere to theft of property on August 18, 2000, which resulted in a suspended imposition of sentence for three years. Appellant agreed to conditions for suspended imposition of sentence that included that he not violate any law punishable by imprisonment. The State filed a petition to revoke on March 9, 2001, alleging that appellant violated the conditions of his suspension by committing the crime of residential burglary on February 15, 2001. A subsequent amended petition alleged that the actual date of the residential burglary was on February 14, and added another alleged violation of committing harassment on June 12, 2001. The hearing on this revocation petition resulted in a finding that appellant had inexcusably violated the terms of his suspension, and he argues on appeal that there is insufficient evidence to support therevocation. We disagree and

affirm.

A trial court may revoke a defendant's probation or suspension if it finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition. Ark. Code Ann. § 5-4-309(d) (Repl. 1997). In revocation proceedings, the State has the burden of proof, and this court will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997). Evidence that may not be sufficient to support a criminal conviction may be sufficient to demonstrate the violation of the conditions of suspension. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). 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. Kirby v. State, 52 Ark. App. 161, 915 S.W.2d 736 (1996).

In the present appeal, appellant was accused of committing residential burglary during the term of his suspension. A person commits the crime of residential burglary "if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment." Ark. Code Ann. § 5-39-201(a)(1) (Repl. 1997).

The evidence presented to the trial judge included the testimony of Rebecca Lankford, who testified that on the afternoon of February 14 she was awakened by the presence of appellant in her apartment, though she thought that the door was locked. According to Rebecca, she and appellant had been friends for approximately two years, and appellant hadoccasionally stayed at her apartment, but he did not have a key. Appellant undisputedly had some belongings inside Rebecca's apartment. Appellant's girlfriend and Rebecca's five-year-old son were in the apartment that day. Rebecca stated that, as he wandered around, she told him that she had given away his tape recorder, which enraged appellant. Appellant then started screaming, cussing at her, and breaking her belongings. Appellant refused Rebecca's command to leave, and instead poured bleach on her, the counter top, the refrigerator, and all around so as not to leave fingerprints behind. Appellant also pulled the telephone cord out of the wall. Appellant then got on top of Rebecca, who had fallen to the floor, held her down with his knees, and choked her with a rope that had been formed into a noose. Rebecca's five-year-old son walked into the room, and appellant, perhaps accidentally, hit the child, giving him a black eye. Appellant and his girlfriend left in his truck, and Rebecca and her son went to a friend's house to use a telephone to call her mother. Rebecca returned in about an hour to find her belongings removed from the apartment. The missing items included a television, a video cassette recorder, decorative items that had not been broken, her son's Sega video game and Sega compact discs, paintings, and a couch. Rebecca said that she did not call the police until the next day because she was first concerned with her son's safety.

Rebecca's mother, Mary Miller, testified that her daughter called her and reported that appellant had choked and beaten her. Ms. Miller learned that her grandson had been hit. Ms. Miller testified that she then called appellant for an explanation, and he told her that he had only tried to prevent Rebecca from cutting her wrists. Ms. Miller stated that when shecame over to Rebecca's apartment, there was a police officer present, Rebecca had no cuts on her wrists but that she did have bruises on her legs and throat, and that her grandson developed a black eye. Ms. Miller described Rebecca's apartment as "totally destroyed." Ms. Miller stated that her daughter had emotional problems, having been diagnosed with post-traumatic stress disorder, and that she was a very slow learner such that people took advantage of her.

The defense called Rebecca's former boyfriend Jackie Vaughn, who was a friend of appellant's and had introduced Rebecca to appellant. Vaughn testified that he lived with Rebecca in the past and that he had a key to the apartment as did appellant. Vaughn said that all he knew about the incident was what he gathered from talking to appellant and Rebecca. Vaughn stated that Rebecca later told him that she pawned her television set, which did not surprise Vaughn since he considered her to be a compulsive liar. Vaughn stated that he had been friends with appellant for fifteen years, that he had seen appellant almost daily, and that appellant did not have any of Rebecca's belongings. Vaughn confirmed that just before court convened, he was outside the courtroom talking to appellant. Vaughn stated that appellant reported to him that he was trying to restrain Rebecca from hurting herself, that Rebecca was the one who was throwing and breaking things, and that Rebecca's son was not present.

Appellant testified that he and Rebecca had been friends for about six months, that he stayed at her apartment occasionally because his children and her son were friends, that he babysat for her, that he had belongings in the apartment, and that on that day he came in"like I always did, I knocked and walked right in." Appellant stated that when he arrived, Rebecca was already angry with him and wanted him to get his girlfriend out of her apartment. He said that Rebecca wanted to hurt herself, and it was Rebecca who struck her son when she fell in the kitchen. He stated that Rebecca was the one destroying the contents of her apartment and that he left as soon as he could. Appellant denied ever hurting Rebecca or taking any of her things.

The trial judge entertained arguments of counsel. The State argued that it had clearly met its burden of proving that he unlawfully remained and committed a crime inside her apartment. The defense argued that it had legitimately called Rebecca's credibility into question, that the State should have put on more evidence, such as photographs of the apartment or the testimony of the police officer, and that this was a essentially a swearing match. The trial judge rendered his ruling that the State had met its burden, finding Ms. Miller's testimony "more crucial than anybody else in this matter." This appeal followed.

Appellant argues that the trial court clearly erred in concluding that he violated the terms of his suspension because the State's witnesses were not credible. Appellant also points out that no one could corroborate that it was appellant who inflicted injuries to Rebecca and her son as Rebecca claimed. We disagree with his contention.

A determination of preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, and we defer to the superior position of the trial court to make that determination. Kirby v. State, supra. The trial court was entitled tobelieve the testimony of the victim, even in light of her disability, and to believe the testimony of her mother who reaffirmed her daughter's physical condition and the condition of her apartment. The trial court was likewise at liberty to discount any exculpatory testimony given by appellant's good friend and appellant himself, who had the most interest in the outcome of these proceedings. See Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998); Kirby v. State, supra. The trial court's decision to revoke was not clearly erroneous.

Affirmed.

Pittman and Bird, JJ., agree.