Cody v. State
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Cite as 2010 Ark. App. 542
ARKANSAS COURT OF APPEALS
DIVISION I
No. CACR 09-1057
Opinion Delivered
STEVEN CODY
APPELLANT
JUNE 30, 2010
APPEAL FROM THE CLARK
COUNTY CIRCUIT COURT,
[NOS. CR-2007-122, CR-2007-158,
CR-2007-166]
V.
HONORABLE ROBERT MCCALLUM,
JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED; MOTION GRANTED
JOHN B. ROBBINS, Judge
On January 28, 2008, appellant Steven Cody pleaded guilty to forgery, criminal
impersonation, theft of property, and a hot-check violation. For these offenses, Mr. Cody
received seven years’ probation. Among his conditions of probation, Mr. Cody was ordered
not to commit a criminal offense punishable by imprisonment. On April 14, 2008, the
State filed a motion to revoke appellant’s probation alleging the following violations:
(1) committing the offenses of failing to register as a sex offender, second-degree criminal
mischief, theft of property, and residential burglary; (2) failure to report a change of address
as directed; and (3) failure to pay supervision fees as ordered. After a hearing, the trial court
found that Mr. Cody had violated the terms of his probation and sentenced him to a total
Cite as 2010 Ark. App. 542
of twenty-five years in prison. Mr. Cody now appeals from his probation revocation. We
affirm.
Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(k)(1) of the Rules
of the Arkansas Supreme Court, appellant’s counsel has filed a motion to withdraw on the
grounds that the appeal is without merit. Mr. Cody’s counsel’s motion was accompanied by
a brief discussing all matters in the record that might arguably support an appeal, including
the adverse rulings by the trial court, and a statement of the reason each point raised cannot
arguably support an appeal. Mr. Cody was provided with a copy of his counsel’s brief and
notified of his right to file a list of pro se points within thirty days, but has declined to file any
points.
Probation or a suspended sentence may be revoked upon a finding by a
preponderance of the evidence that the defendant has inexcusably failed to comply with a
condition of the probation or suspension. McKenzie v. State, 60 Ark. App. 162, 961 S.W.2d
775 (1998). Therefore, evidence that is insufficient to convict a person of the offense may
be sufficient to revoke. Id. On appeal of a revocation, the revocation will not be overturned
unless the decision is clearly against the preponderance of the evidence. Id. We must give
due regard to the trial court’s superior position in determining the credibility of witnesses and
weight to be given their testimony. Id.
Rhonda Ware is Mr. Cody’s probation officer. She testified that during his probation
Mr. Cody was living with Johnny Harris, and that at some point Mr. Harris called her and
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told her he had put Mr. Cody out of his residence. After Mr. Cody was arrested for
probation violations, Ms. Ware asked about his residence and Mr. Cody said that he was no
longer living with Mr. Harris. Ms. Ware further testified that upon his arrest Mr. Cody was
$95 behind on his supervision fees.
Rose Marie Simmons testified that she was acquainted with Mr. Cody through her
late husband, James Briggs, who died in February 2007. Ms. Simmons stated that she
received a phone call from the police in March 2008 advising her that Mr. Cody was in
possession of James Briggs’s credit card. Ms. Simmons went to the police station and
identified the card, and the police gave it to her. Ms. Simmons testified that Mr. Cody did
not have permission to have the credit card.
Ms. Simmons also testified about a burglary and theft that occurred at her home later
that month. When she returned from a trip, she found her door kicked in and her house
ransacked, with a stereo and beer missing. Ms. Simmons indicated that she found a bag
containing items belonging to Mr. Cody outside the door on the porch.
Johnny Harris, a pastor, allowed Mr. Cody to live with him after Mr. Cody was
placed on probation. On one occasion in March 2008, Mr. Harris received a call from the
police advising that Mr. Cody was arrested and had in his possession a camera inscribed with
Mr. Harris’s name. The camera was returned to Mr. Harris, and Mr. Harris testified that
Mr. Cody did not have permission to have it. Later that month when Mr. Harris was out
of town, he locked his house and told Mr. Cody he could not stay there while Mr. Harris
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was gone.
Somehow Mr. Cody obtained a house key and entered the house, and
subsequently found Mr. Harris’s car keys and took his car. According to Mr. Harris,
appellant wrecked the car and it was totaled. Although insurance covered part of the loss,
Mr. Harris stated that the incident cost him about $7000, and it was then that he told
Mr. Cody he could no longer live there.
Officer Johnny Campbell testified that he had advised Mr. Cody to stay off the
Henderson State campus as a result of Mr. Cody looking at inappropriate things on the
library computer. Despite that warning, in March 2008 Officer Campbell found Mr. Cody
in the campus library. Mr. Cody initially gave a false name, and he was arrested for
trespassing. Upon searching Mr. Cody’s belongings, Officer Campbell found the camera as
well as credit cards bearing the names James Briggs and Ruth Thornton. The police
contacted Ms. Thornton, and she told them that Mr. Cody did not have permission to have
her credit card.
Mr. Cody waived his Miranda rights and gave statements to the police. In his
statements, he admitted to taking the credit cards without permission. Mr. Cody also
admitted that he unlawfully entered Mr. Harris’s home without permission, and drove the
car and wrecked it.
In Mr. Cody’s counsel’s brief, appellant’s counsel correctly asserts that there can be
no meritorious challenge to the sufficiency of the evidence supporting the revocation. While
the State presented proof of numerous probation violations, it was only necessary that the
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State prove one violation. See Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). In
this case, the State offered sufficient proof that Mr. Cody committed theft of property, which
is committed when a person exercises unauthorized control over the property of another
person with the purpose of depriving the owner of the property. See Ark. Code Ann. § 536-103(a)(1) (Supp. 2009). There was ample testimony at the hearing to establish by a
preponderance of the evidence that Mr. Cody committed theft of a camera, a car, and credit
cards. Thus, the trial court’s determination that appellant violated a condition of his
probation was not clearly against the preponderance of the evidence.
A second adverse ruling occurred after Mr. Cody was revoked and sentenced, when
the trial court denied his motion for an Arkansas Department of Correction bed-space bond.
Arkansas Code Annotated section 16-90-122(a) (Supp. 2009) provides:
(a) Except as provided in subsection (b) of this section, any circuit judge may
authorize the temporary release of an offender in the sheriff’s custody who has:
(1) Been found guilty of or pleaded guilty or nolo contendere to a nonviolent
felony offense in circuit court; and
(2) Been sentenced to a term of imprisonment and committed to the
Department of Correction or the Department of Community Correction and is
awaiting transfer to the Department of Correction or the Department of Community
Correction.
As appellant’s counsel asserts, there can be no nonfrivolous argument on appeal under this
point because this statute is permissive rather than mandatory, providing only that the trial
court may authorize the temporary release of an offender.
The third and final adverse ruling occurred when the trial court denied Mr. Cody’s
motion to consider suspending some of his twenty-five-year sentence. The trial court ruled:
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Cite as 2010 Ark. App. 542
No, I’m going to deny that. I think this is a fair treatment of this whole package. As
I said at the probation revocation, it just starts to pile up on you after a while,
Mr. Cody, and that’s what has happened here. There are just too many problems,
and I’m going to stick with this sentence.
In Fisk v. State, 5 Ark. App. 5, 631 S.W.2d 626 (1982), we held that a criminal defendant has
no right to a suspended sentence or to have his sentences run concurrently, and that these
matters are within the sound discretion of the trial court. Mr. Cody had no right to have any
part of his sentence suspended, and the trial court properly exercised its discretion in denying
the request.
Based on our review of the record and the brief presented, we conclude that there
has been compliance with Rule 4-3(k)(1) and that the appeal is without merit. Appellant’s
counsel’s motion to be relieved is granted, and the revocation and sentence are affirmed.
Affirmed; motion granted.
GLADWIN and BAKER , JJ., agree.
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