Owens v. State
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Cite as 2009 Ark. App. 876
ARKANSAS COURT OF APPEALS
DIVISION IV
CACR09-616
No.
Opinion Delivered
ANTHONY OWENS
APPELLANT
V.
STATE OF ARKANSAS
APPELLEE
December 16, 2009
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
[CR-2004-379, CR-2004-1471, CR2007-79B]
HONORABLE JAMES O. COX,
JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Anthony Owens appeals the revocation of his suspended imposition of
sentence (SIS) on three underlying cases (forgery in the second degree in case CR-2004-379;
overdraft in case CR-2004-1471; conspiracy to possess cocaine with intent to deliver
(reduced) and possession of drug paraphernalia in case CR-2007-79(b)). Appellant was
sentenced to ten years’ imprisonment for the underlying charges and received an additional
twelve-year SIS in case CR-2007-79(b). Appellant argues on appeal that the trial court erred
in finding that he failed to provide support and failed to pay restitution without just cause.
We find no error and affirm.
The State filed a petition to revoke appellant’s SIS in the underlying cases on
December 3, 2008, alleging that appellant had violated the terms and conditions of his
Cite as 2009 Ark. App. 876
suspended sentence by failing to pay restitution as ordered. At the time of the petition,
appellant owed $991.20 in restitution. The petition also alleged that appellant had charges
pending in Sebastian County for failing to pay his court-ordered child support.
Appellant’s revocation hearing took place on February 25, 2009. Anita Elaine Welch,
appellant’s child’s mother, testified that the last time she received a child support payment
from appellant was in November or December 2008, when appellant was released from jail.
She stated that “the payment prior to the one in late 2008 was made years ago; and [she] don’t
remember when it was.” According to Welch, appellant told her to “keep them people out
of [his] business.” She stated that she has known appellant to have a job and he still would
not pay child support. Welch testified that as of December 2008, appellant was almost
$26,000 in arrears.
Deborah Cooksey Avillion, an attorney specialist with the Office of Child Support
Enforcement in Van Buren, testified that appellant’s child support arrears through February
2009 was $26,790. She stated that since February 5, 2003, she has had seven hearings and
several conversations with appellant. Avillion said that she was in court with appellant on
April 26, 2006, following appellant’s arrest for non-payment of child support. According to
Avillion, appellant was released after he told the court he had a $4,964 check at his house and
was going to apply it to his child support arrearages. However, the money was never
received. Avillion also testified that in September 2005 appellant was released on a $520
bond, the amount found on his person, subsequent to being arrested for non-payment of child
support. Avillion stated that appellant claimed disability at various times but never provided
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them with a doctor’s statement that he was disabled and unable to work. She testified that
appellant appeared at a review hearing on December 12, 2008, in a business suit, possessing
business cards, and indicating that he was working and would pay $150 by December 12;
however, he only made a fifty-dollar payment on December 9. Avillion stated that appellant
told her office that he was filing a workers’ compensation claim, but they were never able to
intercept any money from the claim. According to Avillion, the workers’ compensation claim
with Rheem Air Conditioning was closed on August 15, 2002, and no active claim was on
file. She conceded that “there was at least some notice to the Office of Child Support
Enforcement of at least the [appellant’s] claim to injury; the back surgery, the Worker’s [sic]
Comp, and that he had applied for Social Security.” However, she stated that appellant had
never shown her an application for SSI disability or provided her with proof of any
application of rehabilitation services. She stated that the medical records appellant did provide
her with “would actually prove that he was able to work.”
The Office of Child Support Enforcement’s activity log was introduced without
objection during Avillion’s testimony. The restitution ledger was introduced without
objection at the conclusion of the State’s case. The ledger showed that appellant owed
$991.20 in restitution at the time of his revocation hearing.
David Lee Jones, a retired minister, testified that he had known appellant for twelve
years. According to Jones, he and appellant are in the Brother’s Keeper program together.
Jones testified that appellant has a seasonal job, keeping up yards. Jones stated that appellant
cleans his yard and that appellant has done work for other people Jones knew. Jones said that
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he did not think that appellant had the ability to do a lot of physical labor because of his back
injury. Jones also stated: “It seems a little inconsistent that he would have a back injury and
not be able to do much physical work and yet operate a lawn care business, but he had other
people working for him.” Jones testified that appellant had made a considerable amount of
changes since he was released from prison the last time.
Appellant testified that he has had two back surgeries and was presently in need of a
third surgery. According to appellant, he had a work-related injury in 2003 and had to have
surgery on his mid-back. Appellant stated that he returned to work following his surgery, but
was soon fired. Appellant testified that he was performing his work “all right after [his]
surgery.” He also stated that he was “always going to have pain in [his] back.” Appellant said
that his work history ceased after his termination from Rheem. Appellant further testified:
I needed to have surgery again on my back so I filed for disability and I didn’t work
until I got out of prison because I was waiting on a claim from Social Security. I’ve
been waiting since 2002, 2003, when I first filed a claim for disability and every time
that I go to jail, they stop it and then I have to wait and apply again. I developed the
lawn care business to keep some cash coming so that I could help Tim and Nita and
myself as far as medicine and trying to see the doctor. I have not got the second
surgery I needed on my mid-back. . . . I do as much of the lawn care business as I can
then I got a guy who works for me. . . . They help me out when it comes to the hard
labor part of the work. I just go out and contract the work and they come and do the
work.
Appellant stated that he had contracts for five yards from January 15, 2008, to the time of the
hearing, for twenty to thirty dollars a yard. However, he stated that he did not do all of the
yards each week; he had help. According to appellant, he paid his help ten dollars a yard and
he kept twenty dollars. Appellant testified that he was doing his lawn business in 2005,
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Cite as 2009 Ark. App. 876
whenever he could get lawns. According to appellant, in 2005 he lived with his mother and
she supported him; he was also on food stamps. Appellant stated that he made between
$2,000 to $3,000 in 2006 because business was slow and “They kept putting [him] in jail.”
Appellant said that he was in jail from April 22, 2006, to June 28, 2006. Appellant was also
imprisoned from January 16, 2007, to January 15, 2008, on a matter unrelated to this case.
Appellant testified that there were occasions when he would give money directly to his child.
He also stated that he would buy his child clothes and shoes every year. According to
appellant, he spent $400 to $500 on his child yearly. Appellant testified: “I haven’t been
doing what I should have been doing or what I could have done. I would ask you to have
mercy on me so I can be the father to the son I’ve never had.”
On cross, appellant stated that he never paid child support at the Office of Child
Support. He also conceded that buying his child clothes once a year “is not supporting a
child.” Appellant excused his behavior by stating that he had doubts about the child being
his because Welch had different boyfriends. Appellant stated that he paid all of his probation
fees to stay out of jail; however, he insisted that he was not more concerned with staying out
of jail than with his child having food to eat. Appellant testified that he contracts lawns and
his helper does all the work. He stated that his helper has stayed with him for years under this
arrangement. Appellant said he does what physical labor he can with his back problems.
When asked whether he could work at McDonald’s, appellant replied: “I could work at
McDonald’s but they probably wouldn’t hire me because of my record.” He further
indicated that the long standing and moving around would probably prevent him from
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holding down a job at McDonald’s because his left leg gets numb. According to appellant,
he would rather be using his mind.
The trial court found that appellant had, without just cause, failed to provide support
to his minor child. The trial court gave little weight to appellant’s testimony, stating that it
was “despicable.” The trial court told appellant that if he is “physically capable of doing lawn
care, [he is] physically capable of finding some employment that exists in the workplace.”
The trial court found appellant in violation of his suspended sentence and sentenced him to
ten years’ imprisonment. Appellant also received an additional twelve years’ SIS. This appeal
followed.
A trial court may revoke a defendant’s suspension 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 suspension. Ark. Code Ann. §
5-4-309(d) (Supp. 2009); Reese v. State, 26 Ark. App. 42, 759 S.W.2d 576 (1988). This court
will not reverse the trial court’s decision to revoke unless it is clearly against the
preponderance of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002).
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. Richardson v. State, 85 Ark. App. 347, 157 S.W.3d 536 (2004). The State need only
show that the appellant committed one violation in order to sustain a revocation. Id.
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.
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Reese, supra. Once the State has introduced evidence of non-payment, the burden shifts to the
defendant to offer some reasonable excuse for his failure to pay. Id. Arkansas Code Annotated
section 5-4-205(f)(3) (Supp. 2009) sets forth several factors to be considered by the trial court,
including the defendant’s employment status, earning ability, financial resources, the
willfulness of the defendant’s failure to pay, and any other special circumstances that may have
a bearing on the defendant’s ability to pay. Although a probationer cannot be imprisoned
solely on the basis of failure to pay, his failure to seek employment or make bona fide efforts
to borrow money to pay may support a finding that his failure to pay was a willful act
warranting imprisonment. See Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997); Gossett
v. State, 87 Ark. App. 317, 191 S.W.3d 548 (2004).
Appellant argues that the trial court erred by finding that he violated the terms and
conditions of his suspended sentence without just cause. According to appellant, he has just
cause for his failure to pay: he does not have the ability to pay. This argument is without
merit.
The testimony adduced at the revocation hearing showed that appellant was over
$26,000 behind in child support. Appellant operated a lawn-care business, but still failed to
make payments toward his child-support obligation. Following a body attachment, $520 was
paid toward appellant’s arrearage. In addition to the $520, appellant paid approximately
seventy dollars in child support. Appellant admitted to the trial court that he knew that he
did not do what he could. While appellant offered excuses for his violations, the trial judge
was not required to believe him or excuse his failure to comply with the conditions of his
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suspended sentence. See, e.g., Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). In
fact, the trial court gave very little weight to appellant’s explanations, stating that it did not
believe much of what appellant had said and finding his testimony “despicable.” We defer
to the factfinder on issues of credibility. McChristian v. State, 70 Ark. App. 514, 20 S.W.3d
461 (2000). Additionally, appellant’s failure to seek employment, stating that he would rather
work with his mind, supports the trial court’s finding that his failure to pay was willful.
Therefore, we affirm.
Affirmed.
HENRY and BAKER, JJ., agree.
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