Gibbs v. State
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Cite as 2009 Ark. App. 645
ARKANSAS COURT OF APPEALS
DIVISION III
CACR09-56
No.
Opinion Delivered
October 7, 2009
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[No. CR-2007-918]
NICHOLAS GIBBS
APPELLANT
V.
HONORABLE JOHN N. FOGLEMAN,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant Nicholas Gibbs was sentenced to six-years’ probation after pleading guilty to
possession of a controlled substance. Less than a year later, the prosecutor filed a petition to
revoke his probation alleging several violations of the conditions of probation. The trial court
found that Gibbs violated two conditions—associating with persons he knew or had reason to
believe were committing crimes and failing to attend each of his monthly meetings with his
probation officer. On appeal, Gibbs argues that the preponderance of the evidence does not
support the trial court’s findings. We see no error and affirm.
In a hearing on a petition to revoke, the burden is upon the State to prove the violation
of a condition of the probation by a preponderance of the evidence; however, on appeal we do
not reverse the trial court’s decision unless it is clearly against the preponderance of the
evidence. Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988). Neither the same quality nor
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Cite as 2009 Ark. App. 645
degree of proof is required for the exercise of the court’s discretion to revoke the suspension
of a sentence as is required for the finding of guilt beyond a reasonable doubt; because the
defendant in a probation-revocation proceeding is not being tried on a criminal charge, only a
preponderance of the evidence is necessary to support a finding that the probationer has
inexcusably breached a condition associated with his release. Ellerson v. State, 261 Ark. 525, 549
S.W.2d 495 (1977).
One of the conditions of Gibbs’s probation was that he not associate with felons.
However, the testimony established that Gibbs had been present when search warrants were
executed at two different Jonesboro locations and that at both locations a man named Jan Doyle
was present. Doyle was known to the police to be a convicted felon; he was also Gibbs’s first
cousin. Although Gibbs testified that his two documented encounters involving Doyle were
purely coincidental and unavoidable, the trial court found Gibbs’s explanation of the encounters
to be inconsistent and lacking in veracity. Certainly, credibility is left within the sound discretion
of the trial court, and it could reject all or some of Gibbs’s self-serving testimony as he was the
person most interested in the outcome of the hearing. Winbush v. State, 82 Ark. App. 365, 107
S.W.3d 882 (2003).
Based on the foregoing, we are satisfied that a preponderance of the evidence supports
the trial court’s finding that Gibbs violated the terms and conditions of his probation by
associating—at least twice—with a known felon. Finally, because proof of a single violation of
the terms and conditions of release is sufficient to support revocation, we need not address
Gibbs’s second point on appeal relating to his alleged failure to regularly meet with his probation
officer.
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Cite as 2009 Ark. App. 645
Affirmed.
HART and GRUBER, JJ., agree.
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