Terri Irene Sanders v. State of Arkansas

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ar04-629

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

TERRI IRENE SANDERS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-629

JUNE 8, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT,

GREENWOOD DISTRICT

(NO. CR00-62-G, CR-02-121-G),

HON. NORMAN WILKINSON, JUDGE

AFFIRMED

Sam Bird, Judge

By order of January 13, 2004, the Sebastian County Circuit Court revoked the suspended sentences of Terri Irene Sanders in two criminal cases. She was sentenced in each case to three years in the Arkansas Department of Correction and to seven years' additional suspended imposition of sentence, the sentences to run concurrently. Sanders now appeals, contending that the evidence was insufficient to support the revocation. We conclude that the trial court did not clearly err in finding that Sanders violated terms of her suspended imposition of sentence; therefore, the trial court's order of revocation is affirmed.

On August 4, 2003, the State filed a petition to revoke Sanders's suspended imposition of sentence in two previous cases of second-degree forgery. The petition alleged that after the court withheld imposition of sentence conditioned upon Sanders's good behavior, she committed the offense of fraudulent use of a credit card on June 23, 2003, and the offenses of criminal trespass and theft of property on July 29, 2003.

A person commits the offense of fraudulent use of a credit card or debit card if, with purpose to defraud, she uses a credit card to obtain property or services with knowledge that the card or account number is stolen, or for any other reason her use of the card or account number is unauthorized by either the issuer or the person to whom the credit card is issued.

See Ark. Code Ann. § 5-37-207(a) (Supp. 2003). A person commits criminal trespass if she purposely enters or remains unlawfully in or upon the premises of another person. Ark. Code Ann. § 5-39-203(a) (Repl. 1997).

The revocation hearing in this case was conducted on January 7, 2004. Betty Hall testified that on Monday, June 23, 2003, Direct Merchants notified her about "a lot of activity" on her credit card, at which time she discovered that she was missing a total of three credit cards. A statement from Hall's Citi Platinum Select card, which was introduced into evidence as State's Exhibit No. 1, showed activity with a closing date of June 10, 2003. Hall testified that statements she received on her three credit cards after June 23 showed transactions that she did not make: one of these later statements reflected a charge to Wal-Mart in Greenwood, Arkansas, for $186.30 on June 23, 2003.

Hall, although observing that Sanders's hair was no longer frosted, identified Sanders in the courtroom as the woman who had pulled her car into Hall's driveway and honked on the evening of June 21, 2003. Hall testified that when she went out to the back porch to ask if she could help, Sanders said she had come to give a ride to Hall's son and told Hall to tell him to hurry. Hall testified that the encounter lasted about five minutes and that Sanders did not enter the house.

Denise Hackney, manager of the Wal-Mart in Greenwood, testified regarding a credit-card purchase of items totaling $186.30 at a checkout register on the afternoon of June 23, 2003, which was recorded by the store's security cameras and later copied onto video tape. Hackney testified that a woman appeared on the tape and that the card numbers used in the woman's transaction matched those shown in State's Exhibit No. 1. The video tape and paper documentation of the transaction were introduced into evidence.

Kenny Dale Brown testified that he knew Sanders only from tapes of twenty-four-hour video surveillance cameras that he set up after he had discovered some items were missing from his carport. He stated that he had never had contact with her but had learned that she lived half a block behind his house. He identified Sanders as the person shown in his video once in early March about 3:45 a.m. and, on a second occasion in April or May, around 10:45 a.m. He said that he contacted city law enforcement after the second event. Brown would not agree under cross-examination that the video showed a dog or that Sanders might have entered his garage to retrieve her dog.

Dale Johnson, Chief of Police for Mansfield, Arkansas, testified that Sanders lived in Mansfield and that he had encountered her 800 or 900 times in his twenty-year career there. Johnson stated that he was certain that she was the woman on the Wal-Mart video tape and Brown's tapes. Johnson stated that he had seen Sanders with different hair colors, including the color on Brown's tape. Under cross-examination, Johnson stated that the video depicted Sanders in the carport about three minutes the second time, that it showed her picking up something and carrying it out, that he could not determine what the item was, but that it looked like a dog and Sanders appeared to be holding a puppy.

Sufficiency of the Evidence

Defense counsel moved for a directed verdict at the close of the evidence. He contended that no evidence connected Sanders with the credit card, noting that the Wal-Mart video showed "just the top of somebody's head." He also contended that, even assuming that Sanders appeared on the neighbor's tape, there was absolutely no evidence of criminal behavior because a dog was clearly shown and the common-sense conclusion was that she was retrieving it.

The trial court issued the following ruling from the bench:

It appears to me that with regard to the credit card issue that the witness testified that her credit card was used without her consent. And she cancelled the cards as soon as she found out and disputed the charges. One of the charges was $186.30 on June 23 to Wal-Mart in Greenwood and there happens to be a surveillance tape that according to the Wal-Mart manager shows the transaction and according to Chief Johnson that is the defendant making the transaction. I don't have any problem finding that Terri Sanders committed the offense of fraudulent use of a credit card. I don't have any trouble finding that by a preponderance of the evidence.

With regard to the theft of property I am not convinced there was any theft of property.... I think that for the second time it is possible that the defendant went in for the dog but for the first time at 3:45 in the morning I don't believe that was the case and so I believe that the offense of criminal trespass was committed....

Based upon these findings, the court found that the State had shown by a preponderance of the evidence that Sanders had violated the terms of her suspended sentences in the two previous cases.

In pronouncing sentence, the trial court stated that it did not find the offense of criminal trespass to be "real serious" but that it was disturbed by the fraudulent use of a credit card. The court then revoked the suspended sentences in the two cases, imposing sentences of three years in the Arkansas Department of Correction and seven years' suspended imposition of sentence in each case, the sentences to run concurrently. The judgment and commitment order reflects the revocation and sentencing.

Sanders's arguments on appeal are essentially those made in her motion for directed verdict. Her arguments go to the credibility of the witnesses and identification of Sanders, and to the weight of the evidence regarding the unauthorized use of Hall's credit card and the criminal trespass of Hackney's property. She contends that the evidence was insufficient for revocation because there was "more than doubt" as to her guilt.

A revocation of probation requires a finding that the defendant has inexcusably failed to comply with a condition of her suspension or probation. See Ark. Code Ann. § 5-4-309(d)(Repl. 1997). 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). 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 the 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).

Here, the State presented documentation of use of Hall's Citi Platinum Select card, video surveillance tapes of activity at a Wal-Mart check-out register, and the testimony of Betty Hall, Denise Hackney, and Chief Dale Johnson as evidence of Sander's unauthorized use of Hall's credit card two days after Sanders drove to Hall's home. Video surveillance tapes, as well as the testimony of Kenny Brown and Chief Johnson, were introduced to show Sanders's criminal trespass upon Brown's premises. We hold that the trial court's findings of these two criminal offenses are not clearly against a preponderance of the evidence. Therefore, the revocation is affirmed.

Affirmed.

Griffen and Vaught, JJ., agree.