Antonio Woods v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ANTONIO WOODS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-372

June 29, 2005

APPEAL FROM THE MISSISSIPPI COUNTY CIRCUIT COURT

[NO. CR02-125]

HON. DAVID BURNETT,

JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

Robert J. Gladwin, Judge

On October 18, 2002, Antonio Woods pleaded guilty to possession of marijuana with intent to deliver and received three years' probation. On September 12, 2003, the State filed a petition to revoke, alleging that appellant had failed to live a law-abiding life; possessed illegal drugs; associated with known criminals; possessed alcoholic beverages; and committed possession of marijuana with intent to deliver on June 27, 2003. The Osceola County Circuit Court found that appellant had violated the terms and conditions of his probation and sentenced him to five years' imprisonment. Counsel for appellant has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1), alleging that this appeal is without merit. The motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's

brief and notified of his right to file a list of points on appeal within thirty days. Appellant elected not to file any points. We affirm and grant counsel's motion to withdraw.

Luxora Police Chief Albert Wright testified that on June 27, 2003, he stopped a vehicle because he suspected that the driver was intoxicated. Specifically, Wright said that the vehicle was weaving and that the driver failed to use turn signals at two intersections. When Wright approached the vehicle to ask the driver for his license and registration, he saw two opened bottles of Budweiser and smelled marijuana. The driver, who was identified as Bradley Richardson, and his passenger, appellant, were arrested and placed into Wright's patrol unit. Other officers arrived, and they conducted an administrative search of the vehicle, which was later towed. Wright testified that he saw another officer reach under the passenger's seat, where appellant had been sitting, and that the officer pulled out a bag that contained eight individual baggies of marijuana. They also found $487 on appellant's person. Wright stated that he knew appellant and that appellant was unemployed. Wright testified that both Richardson and appellant told him they had borrowed the vehicle. According to Wright, the vehicle was registered to Billie Jean Fernandez, whom he knew to have a reputation as a drug dealer.

Officer Bobby Ephlin with the Mississippi County Sheriff's Office testified that the $487 found on appellant was in various denominations. He stated that he also found a pager belonging to appellant.

Appellant testified that he knew Fernandez's reputation as a drug dealer and was aware that she had drug convictions but that, although he had known Richardson throughout his entire life, he did not know that Richardson had committed any crimes. He testified that he did not know about the marijuana inside the vehicle and that neither he nor Richardson smoked any marijuana. He said that he had borrowed Fernandez's vehicle that day to goshopping in Blytheville where he planned to buy a couple of outfits for his nine-month-old daughter. Appellant testified that he was employed at a grocery store and was paid in cash. He explained that he had a pager because he had a lot of female friends and his baby's mother might need to contact him. Appellant stated that he had bought the beer found inside the vehicle but denied that he had opened it. On cross-examination, appellant clarified that he was not employed at the time of his arrest.

Wade Elliot, a jailer at the Mississippi County Sheriff's Office, testified that appellant was his wife's cousin. He stated that appellant had worked off and on at a plant but that when it closed, appellant began doing odd jobs. Elliot testified that appellant had "a roller coaster life" but that he had been staying out of trouble. He added that appellant took care of his family.

Evelyn Brown, appellant's aunt, testified that she was partly to blame for appellant's situation because he had asked her many times to take him to look for a job. She stated that she would start taking appellant to church so that he could begin living his life for God.

The trial court found that appellant had violated the terms and conditions of his probation. The trial court pointed out that appellant admitted that he had possessed alcohol and had associated with a known criminal by borrowing Fernandez's vehicle. In addition, the trial court found that appellant had jointly possessed the marijuana found underneath his seat in the vehicle.

A revocation of probation requires a finding that the defendant has inexcusably failed to comply with a condition of his probation. See Ark. Code Ann. § 5-4-309(d) (Supp. 2003). The burden is on the State in a revocation proceeding to prove by a preponderance of the evidence the violation of a condition of probation, but it need prove only that the defendant violated one of those conditions. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a revocation. Id. The appellate court does not attempt to weigh the evidence or to determine credibility of witnesses, as that determination lies within the realm of the trier of fact. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004).

Considering appellant's own admissions that he violated the conditions of his probation by both possessing alcohol and associating with known criminals, the trial court's revocation of appellant's probation is supported by a preponderance of the evidence. The trial court also found that appellant possessed marijuana; however, the State had to prove only one violation.

According to counsel, no objections were made during the revocation hearing, and the record supports that assertion. Finally, counsel states that he filed a motion to suppress even though no incriminating statements had been made but that, in any event, the exclusionary rule does not apply to revocation hearings. It is true that the exclusionary rule does not extend to revocation hearings, unless the probationer demonstrates an exception. See McGhee v. State, 25 Ark. App. 132, 752 S.W.2d 303 (1988). At such hearings, a trial court may permit the introduction of any relevant evidence of an alleged violation of the conditions of probation, including evidence that might be subject to a motion to suppress in a trial on the merits. Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980). Here, however, appellant made no incriminating statements that the State sought to introduce into evidence.

From a review of the record and the brief presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and pursuant to the requirements of Anders, we agree with counsel that the appeal is whollywithout merit. Accordingly, we affirm appellant's revocation and grant counsel's motion to withdraw.

Affirmed; motion granted.

Neal and Baker, JJ., agree.