Norman Gaines v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
LARRY D. VAUGHT, JUDGE
DIVISION IV
CACR05-582
May 3, 2006
NORMAN GAINES
APPELLANT
V.
APPEAL FROM THE COLUMBIA
COUNTY CIRCUIT COURT
[CR-01-60A]
HON. LARRY CHANDLER, CIRCUIT
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant Norman Gaines appeals the trial court’s decision to revoke his probation
and sentence him to six years’ incarceration with four years suspended. On appeal, Gaines
argues that there was insufficient evidence to support the harassment charge upon which the
revocation was based. We disagree and affirm.
On May 20, 2002, Gaines was placed on five years’ probation after he entered a plea
of guilty to sexual abuse of a minor. His conditions of probation required that he not violate
the law, be on good behavior, and report any arrest or questioning by law enforcement to his
supervising officer within twenty-four hours. On July 28, 2004, Gaines was arrested for
harassment. A revocation hearing was held on March 3, 2005.
Wesley Stockwell, manager of the S&S Home Center in Magnolia, Arkansas, testified
that Gaines frequently came to the store, often right before closing. Stockwell stated that
Gaines referred to the women that worked at the store as “sweetheart” and “honey.”
Stockwell described Gaines as “strange” and “peculiar.” Stockwell recited that the women
who worked in the store felt uncomfortable around Gaines. Stockwell explained that several
of the women became concerned for their safety, especially Cindy Williams. He testified that
employees of the store would warn Cindy that Gaines was coming to the store so that she
could hide in the back of the store or leave early without Gaines noticing. Stockwell stated
that he was afraid Gaines might try to follow Cindy home. In January 2004, Stockwell’s boss
sent Gaines a letter asking him not to come to the store any more. Stockwell admitted that
after the letter was sent, Gaines did not come back to the store. However, Gaines continued
to order merchandise via telephone and have someone else pick it up. Stockwell recalled a
day in June 2004 where Gaines got upset and called the store several times in a row
complaining about his banishment from the store.
Christie Weems, an employee of the store, testified that Gaines wanted only women
to wait on him, and he would pat them on the shoulder or back, give them hugs, and talk
about things unrelated to hardware. She stated that she became uncomfortable with Gaines
and asked that she not be responsible for assisting him in the store. Weems also testified that
Gaines often asked specifically for Cindy Williams. Weems described how Gaines frequently
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called the store, and one time in particular, she answered the phone and he screamed at her
for reporting his actions to Stockwell.
Cindy Williams, another employee at the store, testified that she was afraid of Gaines.
She testified that her interactions with Gaines became a problem during the late summer of
2003. She recounted how at first, he visited the store regularly like a normal customer, then
he started coming in only to talk to her. She testified that these encounters became so
bothersome that she began doing things to avoid contact with Gaines, such as hiding in the
back of the store and leaving work early when she saw his truck pull into the parking lot. She
described how his large, green truck made a distinctive sound, so she had warning when he
arrived.
Cindy stated that in March or April 2004, she left her apartment one morning and
noticed Gaines’s truck parked next to her vehicle. She admitted on cross that her apartment
shared a parking lot with a dentist’s office. She also recited how in May 2004, she was sitting
in her car when a white van parked directly behind her—blocking her movement. She stated
that as she went to get out of the car, the van pulled off. She watched the van drive around
the block and park behind some bushes. She stated that she was afraid someone was trying
to steal her car, so she left to switch vehicles and had a friend watch the van’s reaction. Cindy
stated that the van followed her at first, then left. When she returned in a different vehicle
ten minutes later, the white van was again sitting in the parking lot. She stated that she
noticed it had out-of-state tags. Later, as she was leaving church, she saw the van pass by
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three times. She testified that on the third time, she could see the driver’s face. She stated that
she was “positive” it was Gaines. From the first time to the last time she saw the van, two and
a half to three hours had passed. She immediately reported the incident to the police.
Norman Gaines testified in his own defense. He denied harassing anyone, denied
making any calls to the store concerning the charges of harassment, and denied ever driving
or owning a white van. He acknowledged that his dentist’s office was next door to Cindy’s
apartment but stated that he had no idea Cindy lived there at that time.
Following the revocation hearing, the trial court found that Gaines had violated his
probation and sentenced him to six years’ imprisonment, with four years suspended. In its
ruling, the court found that the weight of the evidence favored a finding that Gaines harassed
Christie Weems and Cindy Williams. The trial judge specifically noted that Cindy Williams’s
demeanor on the stand convinced him that she saw Gaines following her in the white van.
To revoke probation or a suspension, the trial court must find by a preponderance of
the evidence that the defendant inexcusably violated a condition of that probation or
suspension. Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). In order for
appellant’s suspended sentence to be revoked, the State need only prove that the appellant
committed one violation of the conditions. Id. at 234, 100 S.W.3d at 71. On appeal, the trial
court’s findings will be upheld unless they are clearly against a preponderance of the
evidence. Id., 100 S.W.3d at 71. Evidence that is insufficient for a criminal conviction may
be sufficient for the revocation of probation or suspended sentence. Id., 100 S.W.3d at 71.
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Because the determination of a preponderance of the evidence turns on questions of
credibility and the weight to be given testimony, we defer to the trial judge’s superior
position. Id., 100 S.W.3d at 71.
Arkansas Code Annotated section 5-71-208 (Repl. 2005) states that:
(a) A person commits the offense of harassment if, with purpose to harass, annoy,
or alarm another person, without good cause, he or she:
(1) Strikes, shoves, kicks, or otherwise touches a person, subjects that person to
offensive physical contact or attempts or threatens to do so;
...
(3) Follows a person in or about a public place;
...
(5) Engages in conduct or repeatedly commits an act that alarms or seriously
annoys another person and that serves no legitimate purpose; or
(6) Places a person under surveillance by remaining present outside that person’s
school, place of employment, vehicle, other place occupied by that person, or
residence, other than the residence of the defendant, for no purpose other than to
harass, alarm, or annoy.
Gaines’s probation was conditioned upon his good behavior and his not violating the
law. Unlike a criminal trial, where the requirement is proof beyond a reasonable doubt, in a
revocation proceeding, the State must only show it was more likely than not that the
defendant committed the acts. It is clear from the court’s ruling that it believed the testimony
of the State’s witnesses and not the self-serving testimony of the defendant. We are satisfied
that the trial court’s finding that Gaines committed the crime of harassment was not clearly
erroneous; therefore, we affirm.
Affirmed.
H ART and R OAF, JJ., agree.
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