Bobby Posey v. State of Arkansas

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ar04-610

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

BOBBY POSEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-610

May 18, 2005

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR-96-661]

HON. DAVID N. LASER,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant in this revocation case pled guilty to robbery in February 1997 and was placed on probation for ten years. The State filed a petition to revoke appellant's probation on October 6, 2003, alleging that he violated its terms by, inter alia, committing the offense of theft of property by stealing an automobile. After a hearing, the trial court found that appellant had violated the terms of his probation by stealing the automobile and sentenced him to ten years' imprisonment. On appeal, appellant contends that the evidence was insufficient to support the finding that he violated the conditions of his probation; that the trial court erred by admitting identification testimony that was assertedly tainted; and that the trial court erred by refusing to admit hearsay testimony. We affirm.

To revoke probation or a suspended sentence, the State must prove the violation of a condition of the probation or suspended sentence by a preponderance of the evidence. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004). The trial court's findings will be upheld on appeal unless they are clearly against the preponderance of the evidence. Id.

Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspended sentence. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the trial judge's superior position. Id.

Appellant argues that the evidence is insufficient because the victim's testimony was tainted and that, in the absence of her testimony, there is no evidence to connect him with the theft of the automobile. We do not agree. Although there was evidence that the victim was shown appellant's driver's license photo at the police station a few days before the photo lineup was conducted, appellant never objected to admissibility of the victim's identification testimony on this basis, but merely argued in closing that the victim's having been shown appellant's photo prior to the lineup diminished the credibility of her identification. In this regard, it is significant that the victim testified that appellant was only ten feet away and facing her when she saw him, that she testified she saw appellant twice that evening, that she immediately gave a detailed description of appellant by reference to the similarities and differences of his appearance to that of another person, and that the trial judge expressly found the victim's testimony to be credible. Faced with a similar credibility argument, the Jones court said that the appellate court "does not attempt to weigh the evidence or assess the credibility of the witnesses, as that determination lies within the province of the trier of fact," and that it therefore was "bound by the trier of fact's determination on the credibility of witnesses." Jones v. State, 355 Ark. at 637, 144 S.W.3d at 258. In light of these considerations, the trial court's finding that appellant committed the theft was not clearly against the preponderance of the evidence.

Appellant next argues that the trial court erred in admitting the victim's testimony because it was assertedly tainted by an improper lineup identification. This issue is not preserved for appeal. Appellant did not object to the victim's identification testimony when it was offered; instead, appellant asked that this evidence be excluded only after the victim and police officer had testified extensively and the State had rested. A challenge to an out-of-court identification based on a photo array is not preserved for review where the appellant fails to object to the victim's in-court identification. Lewis v. State, 354 Ark. 359, 123 S.W.3d 891 (2003). Furthermore, appellant's primary argument on this point concerns the evidence adduced in the defendant's case-in-chief that the victim was shown appellant's photograph by police before the lineup and, as noted in the discussion of the preceding point, appellant never argued below that the identification testimony should be excluded on this ground. Only those issues that were before the trial court at the time when suppression was denied are preserved for appeal. See Johnson v. State, 325 Ark. 197, 926 S.W.2d 837 (1996).

Finally, appellant argues that the trial court erred in refusing to admit appellant's testimony that another man had confessed to appellant that he stole the victim's automobile. Appellant's argument is fallacious: beginning with the true premises that hearsay is excluded by the rules of evidence and that the rules of evidence do not strictly apply in revocation proceedings, he concludes that hearsay therefore must be permitted at revocation hearings. It is a logical fallacy to draw an affirmative conclusion from a negative premise, and the argument is therefore invalid. Appellant fails to present convincing argument or to cite authority for his argument, and such arguments will not be considered on appeal unless it is apparent without further research that they are well taken. See Rikard v. State, 354 Ark. 345, 123 S.W.3d 114 (2003).

Affirmed.

Gladwin and Bird, JJ., agree.