Roberson v. State

• Decision Date: 01 May 2002
• Docket Number: 01-263
• Parties: NOT DESIGNATED FOR PUBLICATION LEON ROBERSON APPELLANT V. STATE OF ARKANSAS APPELLEE CACR01-263 ARKANSAS COURT OF APPEALS DIVISION III
• Court: Arkansas Court of Appeals

NOT DESIGNATED FOR PUBLICATION

LEON ROBERSON APPELLANT

V.

STATE OF ARKANSASAPPELLEE

CACR01-263

ARKANSAS COURT OF APPEALS DIVISION III

May 1, 2002

AN APPEAL FROM PHILLIPS COUNTY CIRCUIT COURT, [CR96-284], HON. L.T. SIMES II, JUDGE

AFFIRMED

WENDELL L. GRIFFEN, JUDGE

Leon Roberson appeals from the revocation of his suspended sentences. He argues that the trial court erred in revoking his suspended sentences because 1) the State failed to show that he wilfully violated the terms of his suspended sentences; 2) the court held appellant to terms and conditions that were not explicitly set out in writing and of which he had no notice; and 3) the court had no jurisdiction to run his sentences consecutively. We hold that the trial court's decision that appellant wilfully violated a condition of his 1997 suspended sentence was not clearly erroneous and affirm.

In January 1997, appellant pleaded guilty to possession of marijuana with intent to deliver and to possession of firearms by certain persons. He received two five-year suspended sentences, which were to run concurrently. The State subsequently filed a petition to revoke appellant's suspended sentences, alleging that he attempted capital murder by firing a gun at a police officer, thereby violating the following written conditions of his suspended sentence: 1) he agreed not to commit any violation of the law for which he could be jailed or imprisoned; 2) he agreed not to possess any firearms, knives, or any other weapons; and 3) he agreed to pay a $300 fine and court costs. A hearing was held on December 15, 2000, and the following testimony was adduced.

At approximately 1:00 a.m. on May 25, 2000, Officer Winston Jackson of the West Helena Police Department responded to a telephone complaint that four males, two of whom had weapons, were seen at 519 Garland Street. By the time Jackson arrived, the men had left the residence in a Mazda 626, which was later determined to belong to appellant. Jackson searched for the vehicle and spotted it traveling the wrong way down a one-way street. As he pursued the vehicle, shots were fired at him. Jackson testified that he had engaged his spotlight and saw the person in the front passenger seat fire at him. Two bullets hit the top and middle of Jackson's front bumper, but he was not injured.

Other officers pursued the vehicle from West Helena to Marianna. In Marianna, the car left the roadway. In the area where the car went off of the road, an officer found a .357 caliber Smith and Wesson. The chase continued to Memphis, Tennessee, where the vehicle wrecked. Captain Bill Williams of the West Helena Police Department apprehended appellant from the front passenger seat of the car. James Townsend and Oscar Gonzales were also apprehended. The driver, later identified as Raymond Lewis, fled, and has not been apprehended. Another weapon, a .25 caliber pistol, was recovered from the vehicle. Appellant was subsequently charged with attempted capital murder.

At the revocation hearing, Jackson testified that the person leaning out of the front passenger seat shot at him. He stated that he was using the spotlight on his car and there was "no doubt in my mind that the person firing the shots was in the right front passenger seat." Jackson further testified that when the gunfire started, he stopped his vehicle and ducked down.

Captain Bill Williams testified that the damage to Jackson's vehicle was consistent with a large caliber weapon, such as a .357 revolver. Williams took statements from appellant, Townsend, and Gonzales. According to Williams, appellant admitted that he was in the front passenger seat of the car and was in the car when the shots were fired, although he denied that he was the shooter. Appellant also told Williams that the .357 revolver found in Marianna was thrown out of the car and was the gun that was used to shoot at Jackson.

Over appellant's objection that the testimony was hearsay, Williams further testified that both Townsend and Gonzales stated that appellant was in the front passenger seat and that he fired several shots at Jackson, and they further confirmed that the .357 found in Marianna was the gun used during the shooting. Townsend specifically stated that appellant leaned out the window and fired at Jackson, and Gonzales stated that appellant fired at Jackson with a .357 chrome-plated gun.

Appellant testified that he and the other occupants were traveling from West Memphis, where they had visited his mother and aunt. He stated that they stopped at the residence to purchase drugs and that he intended to purchase cocaine.¹ He also admitted that there were three guns in his vehicle, but he said that he was not aware of the guns until after the shooting.² He admitted that the car was his, and that he had been sitting in the front passenger seat of the car, but he denied possessing a gun or shooting at Jackson. Appellant could not identify the shooter, but confirmed that the guns recovered in Marianna were the guns from the car. He asserted that Gonzales possessed one of these guns and that Gonzales threw a gun out of the vehicle. Appellant maintained that Gonzales was sitting in the rear passenger seat behind him, and that a gun (presumably, the .25 caliber gun) was found stuffed in the back seat on the right passenger side. He further stated that he had only known the occupants for one week, and that he "had no idea" of whether they had been convicted of any felonies.

The trial court found that by his own admissions, appellant had violated the terms of his suspended sentence that prohibited him from associating with felons and from possessing weapons. The trial judge did not find that appellant fired the shots and, in fact, stated that he did not know what happened, but found that appellant was in constructive possession of the weapons that were in his car. The trial judge noted that as an accomplice, appellant was equally liable even if someone else fired the gun.

Therefore, the trial judge revoked appellant's suspended sentence and ordered him to serve ten years on the original possession of a controlled substance charge and twenty years on the original possession of firearms charge. The court further ordered these sentences to run consecutively.

I. Sufficiency of the Evidence

Appellant first argues that the State did not present sufficient evidence to show that he wilfully violated the terms of his suspended sentences because 1) he had only known his cohorts a short time and did not know that they were felons; 2) he denied possessing the guns; 3) he denied being the shooter; 4) the record does not reflect that the revolver found in Marianna is the gun that fired the shots at Jackson; 5) he testified that Gonzales threw the weapon out of the window; 6) the statements given by Gonzales and Townsend are not credible; and 7) Jackson's testimony that he saw the shooter is not credible because he "ducked down" when the shooting began. We hold that the trial court did not err in revoking appellant's suspended sentences.

In revocation proceedings, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his suspended sentences. See Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). In order for appellant's probation to be revoked, the State need only prove that the appellant committed a single violation of the conditions. See id. We will not reverse the trial court's decision unless its findings are clearly against the preponderance of the evidence. See Jones v. State, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient to revoke a sentence. See Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Whether the State has met its burden turns on questions of credibility and weight to be given testimony, and we defer to the trial judge's superior position to make those determinations. See Jones v. State, supra.

Here, appellant's testimony conflicts with the testimony offered by Gonzales and Townsend identifying him as a shooter.³ However, the trial judge did not find that appellant was the shooter, and specifically stated that he did not know what happened. Nonetheless, regardless of whether appellant would be liable as an accomplice to the attempted capital murder of Jackson, the evidence is sufficient to show, on a preponderance of the evidence standard, that appe...