Greene v. State

Richard GREENE v. STATE of Arkansas

CR 96-102                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered May 28, 1996


1.   Evidence -- testimony describing house as appellant's initial
     location appropriate -- revocation petition relied upon both
     new drug charge and previous conviction. -- Appellant's
     argument that the officers' testimony concerning the house
     where appellant was first located should not have been
     permitted was meritless where the officers' testimonies
     describing the area and house where appellant was found as a
     high drug-crime area was relevant; where the officer's
     testimony, to which no objection was made, clearly established
     that appellant possessed cocaine when he was arrested on June
     25, 1994, and this evidence was sufficient, alone, for the
     trial judge to conclude that appellant violated the terms of
     his prior probation and suspension conditions; and where,
     finally, the state's revocation petition in case 90-586 did
     not rely only on the June 25, 1994 drug charge, but also
     specified appellant's conviction in 92-548 as being a ground
     for revoking appellant's probation; appellant's conviction in
     case 92-548 was, itself, sufficient to revoke his probation in
     the earlier 90-586 case.

2.   Criminal law -- state's evidence more than sufficient --
     appellant clearly violated conditions of probation and
     suspension. -- Appellant's claim that the State's evidence
     bearing on the June 25, 1994 charge was insufficient to show
     he violated the terms and conditions of his probation and
     suspension sentences in cases 90-586 and 92-548 was meritless
     where the State's evidence was more than sufficient to prove
     by a preponderance of evidence that appellant had violated his
     conditions of probation and suspension. 


     Appeal from Crittenden Circuit Court; David Burnett, Judge;
affirmed.
     Constance G. Grayson, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y Gen.
and Rinda Baker, Law Student Admitted to Practice Pursuant to Rule
XV (E)(1)(b), for appellee.

     Tom Glaze, Justice.*ADVREP*SC3*






RICHARD GREENE,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



CR96-102

Opinion Delivered:  5-28-96

APPEAL FROM THE CIRCUIT COURT
OF CRITTENDEN COUNTY, ARKANSAS,
NO. CR-90-586, HONORABLE DAVID
BURNETT, CIRCUIT JUDGE 


AFFIRMED




                  TOM GLAZE, Associate Justice

     Appellant Richard Greene's appeal involves two prior drug
convictions.  The first one, case CR90-586, was entered on
April 24, 1991, wherein he received a ten-year probation sentence,
conditioned upon future good behavior and other conditions.  The
second one, case CR92-548, was entered on May 24, 1992, wherein he
was convicted of selling and delivering cocaine on October 10,
1991, and given a ten-year suspended sentence conditioned, again,
upon good behavior and other conditions.
     On January 19, 1993, the state filed a petition to revoke
Greene's probation in case 90-586 based upon his drug conviction in
92-548.  The state amended its revocation on February 6, 1995 to
add another cocaine charge whereby the state claimed Greene
possessed cocaine on June 25, 1994.  The state filed another
revocation petition in case 92-548 based upon the June 25, 1994
cocaine charge.
     On October 3, 1995, the trial court held a hearing on both of
the state's pending revocation petitions in cases 90-586 and 92-
548, and the judge found Greene violated his respective
probationary and suspension conditions.  After the trial court made
its finding, it sentenced Greene to forty years in case 90-586 and
ten years in 92-548, the terms to run concurrently.
     We first consider Greene's claim that the trial court erred in
allowing Officer David Holland to relate irrelevant testimony which
was highly prejudicial.  Holland testified that, on June 25, 1994,
he and Officer Lawrence Vaughn were dispatched to the 300 block of
South 9th Street in West Memphis.  Holland said, "I was familiar
with the area, and can describe the residence I was dispatched to." 
In reference to his being in the area in the past, he further
stated, "It is a white frame house with a wooden fence around it,
[and] I have been in that house before."  Greene interposed a
relevance objection which the trial judge overruled.  Holland then
related that he had been inside the house on prior occasions to
assist the narcotics unit in serving search warrants.  
     Holland testified further that upon arrival at the house just
described, he and Vaughn saw Greene standing outside the fence
surrounding the house.  Greene started walking back through the
fence to the house when Holland ordered Greene to stop.  Although
the officers were in uniform and a marked car, Greene ran away with
the officers in pursuit.  Vaughn caught Greene and made a security
frisk after seeing a bulge in Greene's pocket.  Vaughn found $270
in cash along with a rock-like substance.  When asked what the
"rock" was, Greene moved backward and in struggling with Greene,
Vaughn dropped the rock in a gravel drive and Greene ran away
again.  The officer again captured Greene, and found two more
smaller rock-like substances in his pocket which were later tested
positive as being cocaine.  The original "rock" was never found.
     Greene argues Holland's initial testimony describing the house
where Greene was first located was unrelated to the state's
allegations that Greene was dealing in drugs.  He claims that, even
if criminal activity had taken place inside the residence in the
past, the state showed no evidence that Greene was in any way
connected with any such prior drug activity.
     Greene's argument overlooks several points.  First, Holland's
and Vaughn's testimonies only described the area and house where
Greene was found as a high drug-crime area.  We believe this
testimony was relevant for this purpose.  Second, Vaughn's
unobjected-to testimony clearly established Greene possessed
cocaine when he was arrested on June 25, 1994, and this evidence
was sufficient, alone, for the trial judge to conclude that Greene
violated the terms of his prior probation and suspension
conditions.  Third, we also point out that the state's revocation
petition in case 90-586 did not rely only on the June 25, 1994 drug
charge, but also specified Greene's conviction in 92-548 as being
a ground for revoking Greene's probation.  Again, Greene's
conviction in case 92-548 was, itself, sufficient to revoke his
probation in the earlier 90-586 case.
     In conclusion, Greene claims the state's evidence bearing on
the June 25, 1994 charge was insufficient to show he violated the
terms and conditions of his probation and suspension sentences in
cases 90-586 and 92-548.  We need not repeat the evidence already
set out hereinabove.  Suffice it to say, the state's evidence was
more than sufficient to prove by a preponderance of evidence that
Greene violated his conditions of probation and suspension.  See
Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992); see also
Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995), and
Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993).
     DUDLEY, J., not participating.