John M. Silvey v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
JUDGE DAVID M. GLOVER
DIVISION II
CACR08-145
June 4, 2008
JOHN M. SILVEY
V.
STATE OF ARKANSAS
APPELLANT
APPELLEE
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
[CR-2006-119-G]
HONORABLE J. MICHAEL
FITZHUGH, JUDGE
AFFIRMED
This is an appeal from the revocation of a suspended imposition of sentence.
Appellant, John Silvey, argues that the trial court erred in finding that the State had proved
that he had violated the terms and conditions of his suspended imposition of sentence by a
preponderance of the evidence. We affirm the revocation.
On March 7, 2007, Silvey pleaded guilty to the offense of sexual indecency with a
child, a Class D felony, in Sebastian County case CR2006-119. He was given a five-year
suspended imposition of sentence; fined $750 and ordered to pay $150 in court costs,
payable at $55 per month beginning on April 1, 2007, as well as being assessed a $100 fee
for the public-defender fund; ordered to register as a sex offender; and ordered to have no
contact with the victim. Some of the other conditions of his suspended sentence included
no violation of any federal, state, or municipal laws, and obtaining employment.
On July 31, 2007, the State filed a petition to revoke Silvey’s suspended sentence,
alleging that he had committed the offenses of criminal trespass, public sexual indecency,
contributing to the delinquency of a minor, and fleeing. The State also asserted that Silvey
had failed to pay his public-defender fee, his fine, and his court costs.
At the beginning of the hearing on the petition to revoke, the State introduced into
evidence, over Silvey’s objection, the fines and costs ledger pertaining to Silvey’s
payments, or lack thereof, in case 2006-119. Mark Fisher, a park ranger at Ben Geren
Park, testified that a little after 11 p.m. on July 25, 2007, after the park had closed and he
had locked the first gate to the park, Silvey and a female companion sneaked into the park
through the second gate. After Fisher locked the second gate, he saw a green Volkswagen
with its lights on sitting in the parking lot of the hiking and biking trails. He pulled up to
investigate, and when he got about a foot from the vehicle, Fisher saw a white male, later
identified as Silvey, pop up out of the back seat. Fisher testified that both Silvey and the
female were naked, and that Silvey was lying on top of the female; however, Fisher did
not see any act of sexual intercourse, deviate sexual activity, or sexual activity. Fisher
asked both parties to get dressed; Silvey got dressed first and Fisher ascertained his identity
and the fact that he was a registered child sex offender. Fisher obtained consent to search
the vehicle, which was registered to the female’s parents, and while Fisher was searching
the vehicle, Silvey fled on foot. When Fisher ran her driver’s license, he learned that the
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female with Silvey was seventeen, although she was just a few days shy of her eighteenth
birthday.
At the close of the hearing, the trial court found by a preponderance of the
evidence that Silvey had violated the terms of his suspended sentence in that he had
committed criminal trespass, public sexual indecency, and fleeing, and had contributed to
the delinquency of a minor. The trial court also stated that it wanted the record to show
that Silvey had clearly failed to make his payments. Silvey was sentenced to two years’
incarceration, with an additional four-year suspended imposition of sentence.
A trial court may revoke a defendant’s suspended sentence at any time prior to the
expiration of the period of suspension if it finds by a preponderance of the evidence that
the defendant has inexcusably failed to comply with a condition of his suspended sentence.
Ark. Code Ann. § 5-4-309(d) (Repl. 2006). In a hearing to revoke, the burden is on the
State to prove a violation of a condition of the suspended sentence by a preponderance of
the evidence. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). On appellate
review, the trial court’s findings are upheld unless they are clearly against the
preponderance of the evidence. Id. The appellate courts defer to the trial court’s superior
position to determine credibility and the weight to be accorded testimony. Id. In order
to revoke a suspended sentence, the State need only prove one violation. Id.
On appeal, Silvey argues that the State failed to show that he had violated the terms
and conditions of his suspended sentence by a preponderance of the evidence. We note
that Silvey has not contested the trial court’s finding that he committed the offense of
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fleeing; this alone is sufficient to support the revocation of Silvey’s suspended sentence, as
the State must only prove one violation of the conditions of suspension. Rudd v. State, 76
Ark. App. 121, 61 S.W.3d 885 (2001). However, we also note that any of the other
findings made by the trial court would have also been sufficient to support the revocation
of Silvey’s suspended sentence.
Affirmed.
GRIFFEN and HEFFLEY, JJ., agree.
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