Michael D. Mingo v. State of Arkansas
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR08-147
Opinion Delivered
MICHAEL D. MINGO,
APPELLANT
S EPTEMBER 3, 2008
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
[NO. CR-2003-1168-B]
V.
HONORABLE J. MICHAEL
FITZHUGH, JUDGE,
STATE OF ARKANSAS,
APPELLEE
AFFIRMED
SAM BIRD, Judge
Michael D. Mingo appeals the revocation of his suspended sentence for possession of
cocaine and possession of drug paraphernalia. In his sole point on appeal, he contends that
the State failed to prove by a preponderance of the evidence that he violated the terms and
conditions of his suspended sentence. We disagree and affirm.
In order 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. Ark. Code Ann. § 5-4-309(d) (Repl. 2006); Wilcox v. State, 99 Ark.
App. 220, ___ S.W.3d ___ (2007). The State only has to show that appellant committed one
violation of the conditions of his suspension in order to support a revocation. Morgan v. State,
73 Ark. App. 107, 42 S.W.3d 569 (2001). Where the alleged violation is a failure to make
payments as ordered, the State has the burden of proving by a preponderance of the evidence
that the failure to pay was inexcusable; once the State has introduced evidence of
nonpayment, the burden of going forward shifts to the defendant to offer some reasonable
excuse for failing to pay. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988).
The terms and conditions of Mingo’s suspended sentence required him to follow all
laws and to pay fines, costs, and fees. In initial and amended petitions to revoke, the State
alleged that Mingo had violated these conditions by failing to make payments as ordered and
by committing new offenses.
State’s Exhibit 1, the fines and court-cost registry, was introduced into evidence at the
revocation hearing of October 17, 2007. Officer Robert Schibbelhut of the Fort Smith Police
Department testified that, in the early morning of July 28, 2007, the driver of an Oldsmobile
drove slowly toward a four-way stop “like he didn’t want to” approach the officer.
Schibbelhut went through the stop sign, circled back, and found that the car had disappeared.
Officer Cort Williams testified that he located the Oldsmobile and led a six-to-seven block
pursuit of it, which ended when the driver stopped, abandoned the car, and ran down an
alleyway between 12 th and 13 th Streets. A ten-year-old girl jumped out of the passenger’s
side, screaming and crying. She did not appear to be hurt, so Officer Williams ran after the
driver, who was a black male wearing a white shirt and blue jeans. Mingo was found a block
away from the car, hiding in a dog kennel in the back of his girlfriend’s house on 12 th Street,
and his young passenger was lying on a sofa in the home. Mingo matched Williams’s
description of the suspect, and the Oldsmobile was registered to Blanche and Michael Mingo.
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Where the sufficiency of the evidence is challenged on appeal, the trial court’s findings
will be upheld unless they are clearly against the preponderance of the evidence. Wilcox v.
State, supra. Because a 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. Wilcox v. State, supra.
The police officers’ testimony and circumstantial evidence support a finding that
Mingo committed the offense of fleeing by driving the vehicle that they pursued and then by
running away. Mingo did not object to the introduction of the registry, and he presented no
excuse for his documented failure to pay fines. Thus, there was sufficient evidence to support
a finding that Mingo violated conditions of his probation by fleeing and by failing to pay fines.
Affirmed.
P ITTMAN, C.J., and G LADWIN, J., agree.
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