Robert Archer v. State of Arkansas

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ar04-152

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ROBERT ARCHER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-00152

NOVEMBER 3, 2004

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR-2000-625, 2000-626, 2000-864]

HONORABLE JAMES ROBERT MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

This appeal arises from the revocation of appellant's suspended sentence in Sebastian County Circuit Court. Appellant, Robert Archer, argues on appeal that the trial court's decision to revoke his suspended sentence on the basis of his failure to pay restitution, fines, and costs was clearly against the preponderance of the evidence. He also argues that the evidence was insufficient to sustain the trial court's revocation of his suspended sentence on the basis of his alleged theft of property. The trial court sentenced appellant to five years' imprisonment in the Arkansas Department of Correction. We find no merit in appellant's arguments and affirm.

On March 7, 2001, appellant entered a negotiated plea of nolo contendere to charges of filing a false police report, aggravated assault, and theft of property. As a part of the negotiated plea, appellant received a sentence of six years suspended sentence, restitution of $515, a fine of $1,000, and costs of $100 and $150. Payments were to be made in increments of $100 a month, beginning April 1, 2001. Appellant's suspended imposition of sentence included a number of standard conditions, including (1) that appellant not violate any state, federal, or municipal law, and (2) that appellant pay restitution of $515 (at $100 a month), a fine of $1,000, and costs of $150 (at $100 a month after restitution is paid in full). On June 26, 2002, the State filed a petition to revoke appellant=s suspended sentence, alleging that appellant had failed to pay the balance of his outstanding restitution, fines, and costs and that appellant committed the offense of theft of property on August 11, 2001.

A hearing was held on the State's petition to revoke on October 1, 2003. Jennifer McConnell testified that on August 11, 2001, while she was an employee of The Diamond Center, she assisted a man who was interested in purchasing one of two diamond rings. She described the first ring as a three-stone diamond ring valued at $9,800 and the other as a single-stone princess-cut diamond ring valued at $7,400. She explained that she removed both rings from the jewelry case, as was customary when someone was seriously interested in comparing and purchasing a ring. She and the man discussed the differences in the two rings, including the difference in clarity. This discussion lasted approximately twenty to twenty-five minutes. While holding one of the rings, the man took the other ring from Ms. McConnell's hand and fled the store. The owner's son followed the man, but was unable to determine which direction he ran. Ms. McConnell testified that approximately one month after the incident, she had no problem picking appellant's picture out of a photo line-up. She also made an in-court identification of appellant at the revocation hearing. She explained that she distinctly remembered appellant's face and what he was wearing due to the amount of time she spent with him at the store and described "rolls on the back of his neck," where his hairline met the back of his neck.

Officer Holloway of the Fort Smith Police Department testified that he showed Ms. McConnell a photo line-up compiled by the department. The line-up contained six photos of different African-American men. He stated that Ms. McConnell studied the line-up for a few moments and then chose appellant's photo. He said Ms. McConnell responded to the line-up photos saying, "I am one hundred percent positive that that is the man that was in my store and stole my rings."

Cindy Dunn, the mother of appellant's common-law wife, testified that while she was in contact with appellant and her daughter on a daily basis once they moved to Joplin, which was twenty-five miles from her home, she could not specifically state that she knew appellant's whereabouts on August 11, 2001. Appellant's common-law wife, Shannon Arey, testified that she and appellant were "together most of the time." However, she too was unable to account for appellant's whereabouts on August 11, 2001. Appellant testified that he was not sure of where he was on August 11; however, he stated that he did not return to Fort Smith after he moved to Joplin at the end of July 2001. However, appellant testified that he returned to Fayetteville around Thanksgiving to visit friends who were attending the University of Arkansas. While in Fayetteville, appellant was picked up for failing to pay the balance of his fines. Appellant testified that he paid $250 toward his unpaid balance that day; however, he failed to make any further payment claiming that the remaining balance for his restitution, fines, and costs " just totally slipped [his] mind." Based on the evidence, the trial court revoked appellant's suspended sentence on the grounds that he willfully failed to pay his fine and restitution and that appellant had committed the offense of theft of property. This appeal followed.

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); Richardson v. State, ___ Ark. ___, ___ S.W.3d ___ (March 10, 2004); 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. Richardson, 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. Id.

In the present case, appellant and his witnesses at trial were unable to explain his whereabouts on August 11, 2001, during the theft at the jewelry store. In addition, Ms. McConnell unequivocally identified appellant in a line-up, as well as in court, as the man that fled the jewelry store with two diamond rings on August 11, 2001. The testimony of one eyewitness alone is sufficient to sustain a conviction. See Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). These circumstances constitute evidence sufficient to find that appellant failed to comply with the conditions of his suspended sentence. Thus, we affirm the revocation of appellant's suspended sentence.1

Hart and Bird, JJ., agree.

1 Because the State must prove only one violation to establish that appellant violated the conditions of his suspended sentences, see Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000), we do not address appellant's argument that the trial court erred in revoking appellant's suspended sentence on the basis of his failure to pay restitution, fines, and costs.