William C. Moore v. State of Arkansas

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ar04-894

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR04-894

March 23, 2005

WILLIAM C. MOORE AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR01-674, CR02-301, CR02-1111]

V. HON. J. MICHAEL FITZHUGH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

William C. Moore appeals from a petition revoking his suspended sentence, arguing that the evidence was insufficient to find that he violated the terms of his suspended sentence. We affirm.1

On April 17, 2002, Moore pled guilty to Class C felony commercial burglary and Class B felony theft by receiving. The court suspended imposition of sentence for five years and ordered Moore to pay restitution, court costs, fines, and fees at a rate of fifty dollars per month. Later that year, Moore pled guilty to Class C felony possession of cocaine and was sentenced to three years' incarceration plus seven years' suspended sentence. Moore was released on October 30, 2003.

On February 25, 2004, the State filed a petition to revoke the suspended sentence, alleging that Moore failed to pay his restitution and that he committed aggravated robbery. At the revocation hearing, the State produced restitution ledgers showing that Moore owed sums of $296.46 and $758.87 and that he had made no payments. In addition, testimony at the revocation hearing showed that on February 18, 2004, Kathy Lovell was working at Tot's Grocery when a young, white male came in the store, showed Lovell what appeared to be a small handgun, and told her to "Put the money in the bag." Lovell opened the register and started giving the man money. The man left the store with approximately sixty dollars. On cross-examination, Lovell said she did not know if the gun was real but that "it scared me enough that I didn't press it." She also testified that the robber never pointed the gun at her; rather, he laid his hands on the counter, with the gun laying in the palms of his hands.

Detective Ron Lockhart investigated the robbery while other detectives pursued the suspect's car. The detectives later identified Moore as the driver of the car. At some point, the detectives detained Moore at a traffic stop where they took him and a juvenile out of the car. After Detective Lockhart read Moore his Miranda rights, Moore confessed to the robbery and stated that the juvenile drove the getaway car. Moore took the detectives to where he left the car. Detectives searched the car and found three air pistols. Later in a taped statement, Moore confessed to robbing Tot's Grocery with the air pistol, taking approximately seventy-five dollars, and splitting the money with the juvenile accomplice. The trial court found that Moore had violated the terms of his suspended sentence and sentenced him to twenty years in the Arkansas Department of Correction. This appeal followed.

In a proceeding to revoke a suspended sentence, the State has the burden of showing by a preponderance of the evidence that the defendant violated a condition of his suspended sentence. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002); Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). We uphold the trial court's findings unless those findings are clearly against the preponderance of the evidence. Bradley v. State, supra. Because of the different burdens of proof, evidence insufficient to support a criminal conviction may be sufficient to support a revocation. Id. The State needs only to prove one violation to cause a suspended sentence to be revoked. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998).

Moore argues that the evidence was insufficient to show that he violated the terms and conditions of his suspended sentence. First, he argues that the only evidence that he willfully failed to pay his restitution was the introduction of the restitution ledgers, which reflected that Moore had made no payments. The State has the burden of showing that the failure to pay restitution was inexcusable; however, once the State has introduced evidence of nonpayment, the defendant had the burden of presenting some reasonable excuse for his failure to pay. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988). Here, Moore presented no evidence to justify failure to pay restitution. Without proof of some justification for his failure to pay restitution, the State's proof was sufficient to justify revocation of Moore's suspended sentence.

Regarding the aggravated robbery, Moore argues that, because Lovett did not know whether the gun was fake or real, the evidence was insufficient to show that he committed aggravated robbery. A person commits robbery if "with the purpose of committing a felony or misdemeanor theft . . . he employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-12-102 (Repl. 1997). Further, a person commits aggravated robbery if a person commits robbery and is "armed with a deadly weapon or represents by word or conduct that he is so armed." Ark. Code Ann. § 5-12-103 (Repl. 1997).

Here, Detective Lockhart testified that an air pistol could be a deadly weapon. In addition, Lovell testified that, while she did not know whether the gun was real or fake, she was too scared to press the issue. As stated in Robinson v. State, 317 Ark. 17, 24, 875 S.W.2d 837, 842 (1994) (quoting McLaughlin v. United States, 476 U.S. 16 (1986)), "the display of a gun instills fear in the average citizen." Without deciding whether or not this evidence would be sufficient to support a criminal conviction, it is more than sufficient to find by a preponderance of the evidence that Moore committed aggravated robbery.

Even if we were to hold that the evidence was insufficient to show that Moore represented that he was armed with a deadly weapon, the evidence still showed that Moore threatened force with the purpose of committing a theft. At minimum, the State proved beyond a preponderance of the evidence that Moore robbed Tot's Grocery. Thus, we hold that the evidence was sufficient to revoke Moore's suspended sentence.

Affirmed.

Gladwin and Baker, JJ., agree.

1 Moore failed to provide a copy of the notice of appeal or judgment and commitment order in his abstract or addendum; therefore, his brief does not comply with Ark. Sup. Ct. R. 4-2(a)(8) (2004). Without a timely notice of appeal, this court cannot obtain jurisdiction. Dodge v. Lee, 350 Ark. 480, 88 S.W.3d 843 (2002). However, the record reflects that the judgment and commitment order was filed on May 24, 2004, and that the notice of appeal was filed on May 27, 2004. It is well-settled that this court may go to the record to affirm. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Therefore, rather than order rebriefing, we consider the notice of appeal timely for purposes of reviewing the conviction. See Sisk v. State, 81 Ark. App. 276, 101 S.W.3d 248 (2003).