Oloye F. Sims v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

OLOYE F. SIMS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-386

JUNE 29, 2005

APPEAL FROM THE CRITTENDEN

COUNTY CIRCUIT COURT

[NO. CR-98-615, CR-98-145, and

CR-98-146]

HONORABLE DAVID N. LASER,

JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Oloye F. Sims appeals the revocation of his probation for one count of possession of cocaine, and the revocation of his suspended imposition of sentences for another count of possession of cocaine and one count of fleeing. The Crittenden County Circuit Court sentenced him upon revocation to concurrent prison sentences of ten years, ten years, and six years, respectively. Pursuant to Anders v. California, 386 U.S. 738 (1967) and Ark. Sup. Ct. R. 4-3(j)(2004), appellant's attorney has filed a no-merit appeal brief and a motion to be allowed to withdraw as counsel. His counsel asserts that there is no non-frivolous argument to be raised on appeal in support of reversal. Appellant was provided a copy of his counsel's brief and motion, and he filed no pro se points for reversal. The State informed our court that because appellant filed no pro se response, it would not file a brief. After performing the review required of us in no-merit cases, we affirm appellant's sentences upon revocation and we grant counsel's motion to be relieved.

Appellant was placed on probation and given suspended imposition of sentence for the above-noted offenses effective July 31, 1998, for five years. The written conditions of his probation/suspension required that he live a law abiding life and not violate any law, that he pay $2,500 in fines and costs by monthly $100 payments beginning in September 1998, that he not use or possess alcohol or drugs and not associate with those who do, that he not associate with criminals, and that he report to his probation officer as directed and pay a $15 monthly supervision fee. There were additional conditions unrelated to this appeal. Appellant admitted that he was provided these conditions and that he signed the conditions.

The State filed a petition for revocation on July 10, 2003, alleging that appellant had violated the conditions as follows: (1) failure to pay fines and costs, (2) failure to report, (3) failure to pay supervision fees, (4) failure to notify authorities of his current address and employment, (5) association with criminals, (6) possession of controlled substances with intent to deliver, (7) association with felons, (8) fleeing, (9) resisting arrest, and (10) obstruction of governmental operations.

At the December 2003 revocation hearing, a sheriff's department employee testified that she collected and recorded fines and costs from probationers. She stated that although appellant was credited with some payments, he was $780 delinquent.

With regard to drug and improper association violations, a West Memphis Police Department narcotics officer, Bailey Phillips, testified for the State. Bailey assisted in the execution of a search warrant at appellant's mother's house on July 2, 2003. There had been two controlled drug buys using a confidential informant at the residence leading to the search warrant; appellant had been present during both buys.

Upon the officer's arrival for the search, Bailey observed appellant and Ebony Taylor in the front yard. When they saw officers coming, they "immediately took off, and fledinside the residence." Bailey stated that inside the residence, officers found 9.9 grams of cocaine inside a man's boot located in the northeast bedroom, a small amount of cocaine in the northwest bedroom, and digital scales in a kitchen cabinet.

Another narcotics officer, Charley Dabbs, testified that he assisted in the search. Dabbs also saw appellant and Mr. Taylor initially outside the front of the house and then running into the house. Dabbs followed Mr. Taylor into the northwest bedroom where he found other persons. Mr. Taylor was attempting to eat the drugs, and he had cocaine residue around his mouth. Officers retrieved a couple of rocks of crack cocaine on the bed beside him.

At this point, the State moved to introduce the photographic exhibits relevant to Mr. Taylor's criminal activity in the house, to which appellant objected. The State responded that appellant was under a duty not to associate with criminals and further that the Rules of Evidence did not strictly apply in revocation proceedings. The trial judge overruled the objection and admitted State's Exhibits 7, 8, and 9.

Dabbs continued his testimony by stating that he had seen appellant during the two confidential informant buys, which occurred within two weeks of the search. Dabbs said that during those buys, he could hear a police scanner inside the residence. Dabbs testified that during his search of the house, he went to the far bathroom beyond a bedroom where appellant had run and locked himself inside. Therein, he saw clear plastic empty bags with residue. Dabbs also saw money, which appeared as though appellant had been digging everything out of his pocket.

Another officer assigned to the gangs unit, J. C. Austin, testified that once the officers made entry into the house, he went to a bedroom door, but it was locked. Officers knocked it open, and once inside, he observed appellant coming out of the bathroom at the back sideof the bedroom. In the bathroom, Austin observed baggies with residue, money, and saw that the toilet sounded as if it had just been flushed. Austin was the officer who retrieved the cocaine found in the size ten, men's boot.

Appellant called his mother, Mrs. Sims, to the stand, who said that she was there the day that officers searched her house. She said that she was the one who made payments on appellant's fines; appellant "hasn't paid a nickel." She said appellant lived with her, that he worked in the summer of 2003, but that he did not pay rent or other utilities. She testified that the boot belonged to her oldest son Thomas, who also lived in the house.

Ricky B. McCall testified that he also lived in the house and was present on the day of the search. McCall said his girlfriend was Mrs. Sims's daughter and also Mr. Taylor's mother. McCall believed that appellant worked, the last time in July 2003.

Appellant testified that he understood his obligation was to report monthly, maintain a job, pay a monthly fee, and "stay out of trouble." He said he did not understand that he had to continue to pay fines and costs after being sent to the penitentiary for a parole violation in April 2001 for being a felon in possession of a firearm. He stated that he had just heard that his mother was paying his fines.

Appellant denied that he ran from the police on the day of the search because he had just come in the door. Appellant said he had stomach problems and had gone to the bathroom, but he could not explain why he went to the farthest bathroom in the house. He said he was on parole for the felon-in-possession case in July 2003, and he lived with his family at his mother's house. Appellant said that he did not have a specific bedroom but slept on the couch in the living room. Appellant denied possessing or knowing about any drugs in the house, and he stated that there were no drugs in the house.

The trial judge found that appellant had violated the conditions of his probationary sentences by (1) willfully failing to pay fines and costs despite gainful employment and despite receipt of written conditions of repayment, (2) associating with criminals, specifically Mr. Taylor who possessed cocaine, considering that scales, the boot with cocaine, and baggies with residue were found in the house, (3) fleeing by virtue of the testimony that he was seen outside with Mr. Taylor but ran and locked himself in a room, and (4) obstruction of justice, by virtue of the police scanner. The circuit court sentenced appellant to ten-year prison terms for the two cocaine offenses and to six years for fleeing, all to be served concurrently. A timely notice of appeal followed.

There were two adverse rulings entered against appellant. The first was revocation, subject to a sufficiency of the evidence review. In a revocation proceeding, the State has the burden of proving a violation of a probationary condition by a preponderance of the evidence. Harris v. State, 270 Ark. 634, 606 S.W.2d 93 (Ark. App. 1980). We will not reverse a finding by the trial court unless it is clearly against the preponderance of the evidence. Tipton v. State, 47 Ark. App. 187, 887 S.W.2d 540 (1994). Appellant did not pay his fines and costs without any reasonable excuse. His mother testified that she paid what was on record on his behalf, and his witnesses agreed that he was gainfully employed during probation. This alone supports revocation. Moreover, the trial court was persuaded by the testimony that appellant fled from the police when they came to execute the search warrant and he associated with a criminal who actively attempted to hide cocaine in the house. These findings were driven by credibility, which are matters left to the fact finder. We conclude that there could be no non-frivolous argument raised to support reversal on the sufficiency of the evidence to revoke.

The second adverse ruling was the admission of exhibits relevant to Mr. Taylor's criminal activity that day, which appellant complained had nothing to do with him. Any argument regarding the admission of these exhibits is wholly without merit because appellant's association with criminals was highly relevant to these revocation proceedings. In addition, the prosecutor correctly responded to appellant that the Rules of Evidence are not strictly applicable in revocation proceedings. See, e.g., Tipton v. State, supra. Moreover, any perceived error associated with the admission of these exhibits would be rendered harmless by virtue of his failure to pay fines and costs, which supported revocation and was unrelated to his association with Mr. Taylor.

Appellant's judgments of conviction upon revocation are affirmed, and counsel's motion to be relieved is granted.

Pittman, C.J., and Vaught, J., agree.