Ky'ron Watkins v. State of Arkansas

DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE

CACR02-667

FEBRUARY 26, 2003

KY'RON WATKINS AN APPEAL FROM THE HOT SPRING

APPELLANT COUNTY CIRCUIT COURT

v. [CR-99-234-2, CR-99-36-2]

STATE OF ARKANSAS HONORABLE PHILLIP H. SHIRRON, APPELLEE JUDGE

AFFIRMED

In January of 2002, appellant was tried before the Hot Spring County Circuit Court for probation violations. The trial court found that appellant had violated his probation by failing to report, pay fees, pay a fine, and pay costs, and failure to obey state laws by committing carnal abuse. The court revoked appellant's probation and sentenced him to ten years in the Arkansas Department of Correction. It is from this conviction that appeal is taken.

On appeal, appellant contends that the trial court erred in denying his motion for directed verdict because the State failed to prove a violation of probation by a preponderance of the evidence. Finding no error, we affirm.

In a revocation proceeding the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence. Lamb v. State, 74 Ark.App. 245, 45 S.W.3d 869 (2001) (citing Ark. Code Ann. § 5-4-309 (Supp. 1999)). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. (citing Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992)). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. ··²hit4²····²hit4²····²hit5²····²hit5²····²hit6²····²hit6²··Id. (citing Lemons v. State, 310 Ark. at 383). In order for appellant's suspended sentence to be revoked, the State need only prove that the appellant violated one of the conditions of suspension. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Lamb v. State, supra. Circumstantial evidence may be sufficient to warrant revocation. Id.

Several witnesses testified at the revocation hearing. Joan Cagle, the mother of then fifteen-year-old Jessica, testified that in August 2001, she called the police because her daughter had been out all night. Notified by another of her daughters that Jessica might be at the Budget Inn with appellant, Joan Cagle went to the establishment. Once there, she asked the attendant to tell her appellant's room number because she had reason to believe that her fifteen-year-old daughter was with him; that request was refused. Unable to find out the room number, Cagle then went across the street to a McDonald's and called the police. She stayed at the Budget Inn until the police arrived. Upon entering the room the police found appellant, Jessica, and Jessica's friend, Ashley McDonald.

Detective Frazier Ford of the Malvern Police Department testified that at around 7:05 on the morning of August 4, 2001, he was dispatched to Budget Inn. When he got there, hestated that he talked with Joan Cagle, who indicated that she had knowledge that her daughter might be in one of the rooms at the hotel. Detective Ford then spoke with the manager of the hotel, informed her of the situation, and received the key to room 41. Once he reached the room, he knocked on the door several times. After about five minutes, appellant opened the door. Detective Ford testified that as he entered the room, appellant

was getting back into the bed with Ms. Cagle. As far as I could tell, Jessica Cagle - she was under the covers. As far as I could see just from chest up with no clothing on. And as far as I could tell, Mr. Watkins - he didn't have any clothes on, no shirt on. He indicated to me that they needed to get dressed before they came out.

Ashley McDonald testified at the hearing that she was at the Budget Inn with her friend Jessica, appellant, and appellant's friend, Maurice. She stated that they were there talking and drinking. McDonald further testified that:

the room was not very big, only had one bed in there. The bed was over towards the bathroom. I slept that night in the chair by the door. Maurice left about 2:00, I'm not sure what time it was. Jessica sle[pt] in the bed. Ky'ron slept in the bed. I woke up a couple of times, but I didn't know what they were doing, I saw movement. I saw movement, but I wasn't really for sure. I didn't hear any noises. I saw back and forth movement. Yes, it looked like they were having sex. I did see them having sex once in the middle of the night. I don't remember. It was after 2:00. They went to bed after I did. I didn't see them go to bed. I did see them when they got up when the police arrived. Jessica was still in the bed covered up and Ky'ron opened the door, he didn't have no clothes on. That morning he didn't have anything on. Jessica had her bra on and that's all I saw. Ky'ron thought that Jessica was 16 going on 17. I know that because she told me that she told him that.

Jessica testified at the hearing that she went to the Budget Inn just to visit with appellant. Jessica indicated that she told appellant she was sixteen years of age and that he did not know that she was only fifteen years old. She further stated that she did not intend to stay overnight, but that her sister had called the hotel around 11:00 p.m., and she wasscared to go home. Jessica acknowledged that while in the room, she, appellant, a guy named Maurice, and her friend Ashley sat around the room and watched television and drank some liquor, but stated that she did not have sex with appellant that night. She admitted that she told the police that she and appellant had sex that night.

Johnny Green, appellant's probation officer, testified that appellant had failed to report from November to May 2001 and was behind on his fine and costs. He stated that appellant had recently told him that he had been in jail for a couple of months, but appellant could not tell him what months, "when to when." Appellant began reporting again from May 2001 to September 2001, but Green stated that he had not seen him since. At the time of the hearing, appellant had only paid $200 in fine and costs.

Following Green's testimony, defense counsel moved to dismiss, arguing that the State had not met its burden of proof as to the issue of carnal abuse. The trial court denied the motion. Appellant then took the stand. He testified that he worked as a roofer and that he had paid his probation officer $200. Appellant stated that he had been in jail from December 2000 to February 2001. He further testified that he did not have sex with Jessica. Following his testimony, defense counsel again moved to dismiss; his motion was denied.

The court found that appellant had failed to report, failed to pay fees, fines, and costs, and had violated state law by committing carnal abuse. The court then sentenced appellant to ten years' imprisonment. This appeal followed.

Appellant argues that the trial court erred in denying his motion for directed verdict in that the State failed to prove a violation of probation by a preponderance of the evidence. As stated previously, in order for appellant's suspended sentence to be revoked, the State need only prove that the appellant committed one violation of the conditions of suspension. See Rudd v. State, supra. The fact that the record adequately reflects that appellant failed to report, a violation of the terms and conditions of his probation, is sufficient alone to revoke his probation. Hence, we affirm.

Further, there was sufficient evidence to find that appellant committed carnal abuse, the real issue with which appellant takes issue. Arkansas Code Annotated section 5-14-1061 provides:

(a) A person commits carnal abuse in the third degree if, being twenty (20) years old or older, he engages in sexual intercourse or deviate sexual activity with another person not his spouse who is less than sixteen (16) years old.

Here, the testimony adequately establishes that appellant was twenty years of age or older when he met Jessica, who was then fifteen years of age. The testimony of Ashley McDonald establishes that the appellant did have sex with Jessica. Additionally, Jessica admitted on the witness stand that she had told the police that she and appellant engaged in sexual intercourse. Therefore, we can not say that the trial court's finding that appellant committed carnal abuse in the third degree was clearly against a preponderance of the evidence.

Affirmed.

Stroud, C.J., and Vaught, J., agree.

1 This section of the Code was repealed by Act 1738 of 2001 and was replaced with Ark. Code Ann. § 5-14-124 et seq. Under the revised section 5-14-127, appellant would still have been guilty of sexual abuse in the fourth degree, a Class A misdemeanor. See Ark. Code Ann. § 5-14-127 (2001).