Ronald Lee Mishion v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
ROBERT J. GLADWIN, JUDGE
DIVISION III
CACR07321
DECEMBER 12, 2007
RONALD LEE MISHION
APPELLANT
V.
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT
[NO. CR2005488/2005857]
HON. NORMAN WILKINSON,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant Ronald Lee Mishion appeals the revocation of his suspended sentence by
the August 24, 2006 order of the Sebastian County Circuit Court. On appeal, Mishion
contends that the State failed to prove by a preponderance of the evidence that he violated
the terms and conditions of his suspended sentence and that the trial court erred in allowing
certain testimony, which Mishion claims denied him his constitutional right to confront the
witnesses against him. We affirm.
Mishion pled guilty to one count of aggravated assault, a Class D felony, on
September 19, 2005, for which he was given a sixtymonth suspended imposition of
sentence. One condition of his suspended sentence was the requirement of good behavior.
On February 14, 2006, Mishion pled guilty to seconddegree sexual assault, a Class B felony,
for which he was given a 120month suspended imposition of sentence. One condition of
that sentence was that he not violate any federal, state, or municipal law.
On March 17, 2006, the State filed a petition to revoke Mishion’s suspended
sentences. The petition alleged that he had failed to comply with the rules and regulations
of the probation office by failing to report and by failing to cooperate and comply with the
conditions of the Department of Community Correction Sex Offender Program. Before the
petition could be heard, it was amended on June 2, 2006, to include three allegations of rape
committed in Oklahoma during the months of February and March 2006.
At the revocation hearing, witnesses for the State included Detective Sampson of the
Fort Smith Police, who testified that he had arrested Mishion at the parole officer’s office
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on a charge of failure to register as a sex offender ; a crime analyst for the Stillwater,
Oklahoma Police Department, who testified that based on conversations she had with
Mishion, he had violated the sexoffenderregistration law in Oklahoma by moving to
Oklahoma City and then to Arkansas without informing her; and Mishion’s parole officer,
who testified that Mishion failed to report to her on March 9, 2006, as she had instructed him
to do, and that when he did report on March 16, 2006, he was arrested. She claimed that
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Detective Sampson testified that he was made aware after the arrest that Mishion
had registered as a sex offender in open court when he pled guilty to the seconddegree
sexual assault charge in February 2006.
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Mishion never attended any of the counseling that he was required to do and that he was
made aware that it was a violation to be around minors.
Because the child victim was not present to testify against Mishion, the trial court
ruled that witnesses could not testify about the rapecrime allegations in Oklahoma without
violating Mishion’s right to confront his accusers, but could testify as to Mishion’s
confession regarding those crimes “if you can convince me by a preponderance of the
evidence on what you have referred to as his confession that he violated the terms of his
suspended sentence.” The State was allowed to examine Michael Williams, an Oklahoma
City police officer, who testified that he did not interview the child victim due to her young
age, and that anyone under thirteenyears old would be interviewed by hospital personnel.
Detective Sampson also testified that Mishion told him he had had sex with the young lady
who had made the allegations against him. Sampson stated that Mishion explained that he
was watching the young lady and a friend of hers in almost a babysitting capacity. The
mother left and that is when Mishion claims that the intercourse with the young lady took
place. Mishion indicated to Sampson that he had sex three times with the young lady, and
he claims that it was consensual.
The circuit court found, based on Mishion’s confession to the rapes, that he violated
the terms of his suspended sentences by engaging in sex with a twelveyearold. The court
also revoked his suspended sentences for failing to properly register as a sex offender in both
Oklahoma and Arkansas. Mishion was sentenced to a term of ten years with an additional
ten years’ suspended imposition of sentence for the violations. This appeal follows.
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In Jones v. State, 355 Ark. 630, 633, 144 S.W.3d 254, 25556 (2004), our supreme
court explained:
We note at the outset our wellsettled law regarding revocation of probation or
suspended sentence. To revoke probation or a suspended sentence, the burden is on
the State to prove the violation of a condition of the probation or suspended sentence
by a preponderance of the evidence. Ark. Code Ann. § 54309(d) (Supp. 2003). See
also Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002); Bradley v. State, 347 Ark.
518, 65 S.W.3d 874 (2002). On appellate review, the trial court’s findings will be
upheld 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.
Patterson v. State, ___Ark. App. ___ S.W.3d ___ (May 30, 2007).
Mishion contends that the State failed to show by a preponderance of the evidence
that he violated the terms and conditions of his suspended sentence. He argues that it was
alleged that he failed to do his counseling, but there was no testimony that counseling
sessions had been established at the time of his arrest. He claims that this is important
because he was arrested on March 16, which is less than thirty days after he pled and was
sentenced on the charge. He further argues that he was informed by his parole officer of the
rules on March 3, 2006, and the allegations of the contact with the alleged minor all occurred
before that date. He claims that he did register as a sex offender at the time of his plea in
open court, and he registered in Oklahoma as a sex offender on February 23, 2006.
Therefore, he contends that the evidence is not sufficient to compel a reasonable mind to
reach a conclusion one way or another without resting on conjecture.
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However, we hold that the State proved by a preponderance of the evidence that
Mishion inexcusably failed to comply with the written terms and conditions of his suspended
sentence. In order to revoke a suspended sentence, the State need only prove one violation.
E.g., Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000).
Mishion registered as
a sex offender in Stillwater, Oklahoma, on February 23, 2006. He subsequently moved to
Oklahoma City, Oklahoma, and then back to Ft. Smith, Arkansas, between February 23,
2006, and March 15, 2006. He did not notify the Stillwater police of either of the moves as
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required by Oklahoma law. By failing to properly register, Mishion violated the terms and
conditions of his suspended sentences. Because the State need only prove one violation of
the terms and conditions of the suspended sentences, this court declines to address Mishion’s
other arguments.
Affirmed.
HART and GRIFFEN, JJ., agree.
2
Oklahoma law requires an offender to register with both the Oklahoma
Department of Correction and local law enforcement no less than three days prior to
abandoning or moving from the address of the previous registration. See Okla. Stat. tit.
57, § 57583(B)(3) (2006).
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