Lelia Ann Reed v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

LELIA ANN REED

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-619

NOVEMBER 19, 2003

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[CR2000-553]

HONORABLE JAMES ROBERT MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Lelia Ann Reed, appeals from a revocation of a three-year suspended sentence arguing that there is insufficient evidence that she violated the terms and conditions of her suspended sentence. The trial court revoked her suspended sentence of three years and sentenced her to six years imprisonment in the Arkansas Department of Correction. We find no error and affirm.

The felony information contained in the record charged appellant with making and delivering checks with the intent to defraud and knowing at the time that sufficient funds were not on deposit with the bank upon which the checks were drawn. The information identified the date of appellant's violation as on or about March 29, 1999. On January 31, 2001, appellant pled guilty to a charge of overdraft, a Class C felony, was sentenced to a three-year suspended imposition of sentence, and ordered to pay restitution in full and a fine of $500, costs of $150, and a public defender fee of $100. On February 26, 2003, the circuit court revoked Reed's suspended sentence and sentenced her to six years' imprisonment in the Arkansas Department of Correction. On appeal, she challenges only the sufficiency of the evidence by specifically alleging that there was insufficient evidence that she violated the terms of her suspended sentence.

Despite appellant's contention, sufficient evidence supports the revocation of her suspended sentence. Detective Ronald Scamardo, Jr., of the Fort Smith Police Department investigated a complaint that someone had cashed a counterfeit check at the Boyz Nite Out Liquor Store. After speaking with Terry Lovell, the store owner, Detective Scamardo developed a photo lineup. Lovell positively identifed Reed in the photo lineup as the person who had cashed the check at his store.

At the revocation hearing, Detective Scamardo identified exhibits two, three, and four as checks that purportedly had been written on Pro Clean Janitorial Service's business account at First National Bank. State's exhibit two was a payroll check for $297.41 made payable to appellant that had been cashed at Boyz Nite Out Liquor Store. State's exhibit three was a payroll check for $498.39 made payable to appellant that had been cashed at Wal-Mart. State's exhibit four was another payroll check in the amount of $498.39 made payable to appellant that had also been cashed at Wal-Mart. Pro Clean Janitorial Service was an active business; however, the checks were not authentic. All three checks were returned to the merchants because they were counterfeit.

Terry Lovell identified State's exhibit two as a check cashed at his liquor store that had been returned to him because it was counterfeit. Lovell identified appellant as the person who had cashed the check and testified that he had only cashed the check because he knew appellant personally. Shirley Hanry, who was employed in Wal-Mart's accounting office, identified State's exhibit three as a check cashed at Wal-Mart that had been returned because it was counterfeit. State's exhibit five was a restitution case profile. The profile reflected that appellant owed a total of $2,689.54 in restitution and had not made any payments toward the balance.

Appellant testified and denied that she had been the individual who had passed the counterfeit checks and stated that her identification had been missing since September of 2002. She admitted that she had failed to make payment on her restitution and offered the excuse that she had been unemployed most of the time, and that when she was employed she only earned sixty dollars ($60) to eighty dollars ($80) a week. She stated that the money she earned was used to support herself and two children. She further testified that she went to Boyz Nite Out Liquor Store maybe twice a week to buy beer and cigarettes but in subsequent testimony said that actually a friend bought beer and cigarettes for her.

Conditions of appellant's suspended sentence included a prohibition against committing any offense in violation of federal, state, or municipal law and required her to make payments at a rate of $50 per month towards restitution. At the conclusion of the revocation hearing, the circuit court revoked appellant's suspended sentence after finding that she had violated its provisions by committing the offense of forgery and by willfully failing to pay restitution. The trial court stated that there was no testimony that appellant was disabled or unable to work and that she had made no effort to pay anything toward the restitution. The court specifically found Terry Lovell's testimony credible in that he saw appellant regularly and cashed the check for her, and that the State had met its burden that appellant had passed a counterfeit check.

We agree with the trial court that sufficient evidence supported the revocation. In a hearing to revoke a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence; on appellate review, the trial court's findings are upheld unless they are clearly against a preponderance of the evidence. Hyde v. State, 59 Ark. App. 131, 953 S.W.2d 911 (Ark. App. 1997). Terry Lovell identified appellant as a regular customer and as the person who had cashed the counterfeit check at his business. The court specifically credited his testimony in finding that appellant had violated the terms of her suspended sentence. Although appellant denied cashing the checks, the credibility of the witnesses was for the trial court to determine. E.g., Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). As such, there was sufficient evidence to find that appellant committed forgery. Coley v. State, 304 Ark. 304, 801 S.W.2d 647 (1991) (affirming a second-degree forgery conviction where the victim observed the defendant draw a check on an account that he was not authorized to use). Furthermore, the checks cashed at Wal-Mart were similar to the ones cashed by Mr. Lovell and were also payable to appellant and drawn on an account purportedly owned by Pro Clean Janitorial.

Although the State need prove only one violation, see Brock v. State, 70 Ark. App.107, 14 S.W.3d 908 (2000), the State's proof regarding appellant's failure to pay restitution is likewise sufficient. Appellant was ordered to pay fifty dollars ($50) per month starting on March 15, 2001. State's exhibit five, admitted into evidence without objection, showed that she had made no payments towards her balance of $2,689.54 when the hearing was held. She admitted she was aware of the balance, and that she went to Boyz Nite Out Liquor Store twice a week to buy beer and cigarettes. As the court noted, there was no testimony that appellant was unable to work. Once the State introduces evidence of nonpayment at a revocation hearing, the defendant then bears the burden of going forward with some reasonable excuse for her failure to pay. See Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Although appellant testified that she used the little bit of money she made for living expenses, the court was not required to believe her testimony. Branscum v. State, 345 Ark. 21 43 S.W.3d 148 (2001).

Accordingly, we find no error and affirm.

Stroud, C.J., and Gladwin J., agree.