Fish v. State
| Decision Date | 30 November 2022 |
| Docket Number | CR-22-276 |
| Citation | 2022 Ark.App. 486 |
| Parties | MARK FISH APPELLANT v. STATE OF ARKANSAS APPELLEE |
| Court | Arkansas Court of Appeals |
APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-19-934] HONORABLE CANDICE A. SETTLE, JUDGE
Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant.
Leslie Rutledge, Att'y Gen., by: Rebecca Kane, Ass't Att'y Gen., for appellee.
Mark Fish appeals from a Crawford County Circuit Court revocation of his suspended imposition of sentence ("SIS") and sentence of six years in the Arkansas Department of Correction, arguing that there was insufficient evidence that he had violated the terms and conditions of his SIS. We affirm.
On September 30, 2019, Mr. Fish pled guilty to one count of first-degree terroristic threating, a Class D felony, and one count of third-degree domestic battering. He was sentenced to five years' SIS. Mr. Smith signed a conditions-of-SIS form detailing the conditions that would revoke his SIS including that he not commit a criminal offense punishable by imprisonment.
On December 8, 2021, Deputy Matthew Hesson of the Crawford County Sherriff's Office charged Mr. Fish with felony vehicular fleeing, and on February 17, 2022, the circuit court held a revocation hearing with Deputy Hesson as the only witness. Deputy Hesson testified he was traveling westbound on a two-lane road to aid with a traffic stop when Mr. Fish drove past heading eastbound and flicked his headlights at Deputy Hesson. When Deputy Hesson arrived at the traffic stop, he learned it had been cleared by another deputy. Deputy Hesson then observed that the lights on Mr Fish's vehicle had been turned off, and he engaged his lights and siren in pursuit of Mr. Fish. Deputy Hesson testified that once he began pursuing Mr. Fish, Mr. Fish accelerated his speed to approximately eighty-five to ninety-five miles an hour in a "forty or forty-five" speed-limit zone. However, Deputy Hesson admitted he did not clock Mr. Fish with his radar, so there was no way of knowing exactly how fast Mr. Fish was traveling, but he estimated Mr. Fish's speed on the basis of his own speed of ninety-five miles an hour to catch up to Mr. Fish from a "fifty to sixty yard distance." Deputy Hesson testified Mr. Fish briefly turned his vehicle's lights back on and then turned them back off before reaching an "S curve" in the road, where Mr. Fish went into a ditch and wrecked his vehicle, leaving skid marks on the road. After Mr. Fish wrecked, Deputy Hesson located Mr. Fish exiting from the passenger side of the vehicle and advised him to come up to the road because "it looked like [Mr. Fish] was going to take off through the field." Deputy Hesson testified that Mr. Fish told him he wrecked trying to avoid an animal, although Mr. Fish's description of the animal changed "four or five times." Deputy Hesson testified that his pursuit of Mr. Fish lasted approximately a mile, and no other vehicles were on the road at that time. Deputy Hesson immediately identified Mr. Fish because he "knew him very well" and placed him under arrest. After the close of the State's case, defense counsel for Mr. Fish rested, and the circuit court revoked Mr. Fish's SIS. From that order comes this appeal.
The circuit court's findings regarding an alleged violation of a term or condition of probation will be upheld on appeal unless the findings are clearly against the preponderance of the evidence. Scroggins v. State, 2019 Ark.App. 346 582 S.W.3d 853. Because a determination of the preponderance of the evidence turns heavily on questions of credibility and weight to be given to the testimony, this court defers to the circuit court's superior position in this regard. Id. Under Arkansas law, a circuit court may revoke a defendant's suspended sentence at any time prior to the expiration of the period of suspended sentence if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a term or condition. Scroggins, 2019 Ark.App. 346, at 1, 582 S.W.3d at 854; Ark....
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