Marcus Howard v. State of Arkansas

Annotate this Case
ar04-094

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MARCUS HOWARD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-94

SEPTEMBER 29, 2004

APPEAL FROM THE UNION

COUNTY CIRCUIT COURT

[NO. CR-1998-198-1]

HONORABLE CAROL CRAFTON

ANTHONY, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Marcus Howard appeals the revocation of his suspended sentence as entered by the Union County Circuit Court. Appellant was subject to a five-year suspended sentence for possession of cocaine that was conditioned upon good behavior, i.e. compliance with federal and state law. During a search of appellant's person at the sheriff's department, appellant ran to the bathroom to flush a plastic bag containing a rock-like substance. The State filed a petition to revoke on the basis that appellant tampered with evidence, in violation of Ark. Code Ann. § 5-53-111 (Repl. 1997). Appellant argues that there was insufficient evidence upon which to revoke. We disagree with appellant and affirm.

To revoke probation or a suspension, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Ark. Code Ann. § 5-4-309 (Supp. 2001); Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). The State bears the burden of proof, but need only prove that the defendant committed one violation of the conditions. Rudd, supra. When appealing a revocation, the appellant has the burden of showing that the trial court's findings are clearly against the preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). 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 in that regard. Id.

A person commits the offense of tampering with physical evidence if he alters, destroys, suppresses, removes, or conceals any record, document, or thing with the purpose of impairing its verity, legibility, or availability in any official proceeding or investigation. Ark. Code Ann. § 5-53-111 (Repl. 1997). In the instant appeal, the testimony at the hearing revealed that an El Dorado police officer was in the process of searching appellant1 when the officer noticed in between appellant's buttocks a piece of plastic with a small rock substance in it, which the officer believed was crack cocaine. The officer explained that in his twelve years of service, crack cocaine is almost always packaged in plastic, and he had found it hidden on other persons, in some instances in the same area of the body as appellant.

As the officer attempted to retrieve the plastic, appellant turned around, grabbed it, and struggled with the officer to evade him. Appellant broke free and managed to get to the toilet, flushing the plastic and its contents. The officer said that appellant told him, "Now you all don't have anything on me." Appellant was then arrested for tampering with evidence.

In response to questioning by counsel, the officer explained that he had he been able to retrieve it, he would have charged appellant with possession of cocaine, and if the rock substance was not cocaine, then with possession of a counterfeit substance. Upon being asked whether he would have charged him with possession of a counterfeit substance if it turned out to be aspirin, the officer stated that he would not, but he did not believe that the substance was aspirin.

Appellant's counsel moved for directed verdict on the basis that the State failed to prove that the substance was evidence at all. Defense counsel argued that, "it's only evidence, if in fact, it has some legal basis for introduction at some future hearing." The motion was denied, and upon renewal was denied again. This appeal followed, and appellant asserts the same position to us on appeal. We do not find his argument to be compelling.

It must be remembered that evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Peterson v. State, supra. In this revocation hearing, the State put forth evidence that appellant destroyed an object that the police officer attempted to retrieve with the purpose of impairing its availability in an investigation or official proceeding. Though the officer plainly intended to charge appellant with possession of either cocaine or a counterfeit substance, there is no requirement in the statute that the object be proven to have "some legal basis for introduction at some future hearing." Only appellant's intent to deprive the police officer of the object during the police investigation was necessary. The State provided sufficient evidence to support revocation because it proved by a preponderance of the evidence that appellant tampered with physical evidence as defined in Ark. Code Ann. § 5-53-111. Compare Scott v. State, 1 Ark. App. 207, 614 S.W.2d 239 (1981) (Scott challenged the requisite intent of tampering with evidence where she threw a weapon into a backyard; weapon was allegedly used by Scott's half-sister to shoot the victim of crime, and officers were in search of the weapon).

Affirmed.

Griffen and Baker, JJ., agree.

1 Appellant does not challenge that he was under arrest for a parole violation or that a search of his person was proper.