Thompson v. State, 00-562

• Decision Date: 12 October 2000
• Docket Number: 00-562
• Citation: 28 S.W.3d 290
• Parties: Eddie Eugene THOMPSON v. STATE of Arkansas CR 00-562 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Eddie Eugene THOMPSON v STATE of Arkansas

CR 00-562 ___ S.W.3d ___

Opinion delivered October 12, 2000

Supreme Court of Arkansas

Appeal from Sebastian Circuit Court; Mark Hewett, Judge; affirmed.

1. Appeal & error -- petition for review. -- On a petition for review, the supreme court reviews the case as if the appeal had originally been filed in that court.

2. Appeal & error -- revocation of probation or suspended sentence -- standard of review. -- To revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence; on appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence; evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation.

3. Criminal procedure -- revocation hearings -- Ark. R. Crim. P. 33.1 applicable. -- While revocation hearings and trials to determine guilt are not equivalent criminal proceedings in all respects, they are, nonetheless, criminal proceedings to which Ark. R. Crim. P. 33.1 would apply; Rule 33.1 requires a defendant to make a directed-verdict motion in both jury and nonjury trials at specified times; in jury trials, the motion must be made at the conclusion of the prosecution's case and again at the close of all the evidence; the rule specifically requires the defense to make the motion at the close of all the evidence in nonjury trials as well as jury trials in order to notify the trial court of the particular reasons why the State's evidence is insufficient in order to preserve that issue for appeal; this rationale is as apposite for revocation hearings as it is for nonjury trials.

4. Criminal procedure -- revocation proceeding -- failure to make directed-verdict motion deprived trial court of opportunity to address issue. -- On appeal, appellant specifically challenged the sufficiency of the evidence by pointing out what he considered inadequacies of proof; however, by not making a directed-verdict motion, he never afforded the trial court the opportunity to address the issue.

5. Criminal procedure -- revocation proceedings -- applying Rule 33.1 consistent with rules outlined in Ark. R. Crim. P. 1.7. -- Applying Rule 33.1 to revocation hearings is consistent with the scope of the rules outlined in Ark. R. Crim. P. 1.7, which states in part that the rules apply to all criminal proceedings commenced on or after the rule's effective date, and to all appeals; it is clear from this language that the Arkansas Rules of Criminal Procedure apply in "criminal proceedings," "appeals," and "post-conviction proceedings" relating to the underlying criminal proceedings; a revocation hearing is part of the "criminal proceedings"; hence, the rules apply.

6. Criminal procedure -- revocation proceedings are criminal proceedings conducted under rules of procedure -- appellant failed to preserve sufficiency of evidence argument. -- A revocation proceeding remains a criminal proceeding conducted under the rules for the determination of the existence of certain alleged facts, which, if established, will affect the ability of the defendant to continue on probation from his sentence; Rule 33.1 does apply to revocation hearings; consequently, appellant's election not to make a directed-verdict motion at the close of all the evidence failed to preserve his sufficiency of the evidence argument; the finding of the court of appeals was affirmed. [cme]

R. Paul Hughes, III, for appellant.

Mark Pryor, Att'y Gen., by: Valerie L. Kelly, Ass't Att'y Gen., for appellee.

Lavenski R. Smith, Justice.

Eddie Eugene Thompson appeals the revocation of his suspended sentences by the Sebastian County Circuit Court. Thompson argues that the trial court based its decision on insufficient evidence. Thompson unsuccessfully appealed his revocation to the court of appeals. The appellate court held that his failure to make a directed-verdict motion at the close of the State's evidence pursuant to Rule 33.1 of the Arkansas Rules of Criminal Procedure caused his insufficiency of the evidence argument not to be preserved. On Thompson's petition, we granted review because the case involves a first-impression interpretation of a recently modified court rule.¹ Thompson contends that Rule 33.1 is inapplicable because a revocation hearing is neither a jury trial nor a nonjury trial. We disagree and affirm.

Facts

On April 17, 1992, Thompson pled nolo contendere to robbery and burglary charges. The court sentenced him to ten years in the Arkansas Department of Correction with nine years suspended. It also ordered him to pay $2,476 in restitution at a rate of $75 per month starting ninety days after release from prison. The sentencing court also specifically prohibited Thompson from possessing any controlled substances. On November 5, 1993, the State filed the original petition to revoke the suspended sentence because Thompson had failed to pay restitution. This petition was amended on January 19, 1994, and March 22, 1994, to include allegations that Thompson had possessed cocaine with intent to deliver and that he had delivered a counterfeit substance along with other violations. In concurrence with these additional revocation allegations, Thompson was prosecuted on the possession charge, and he pled nolo contendere on April 13, 1994, to that charge, and was sentenced to ten years in ADC with five-and-one-half years suspended. Following this disposition, the State withdrew the amended petitions to revoke on the previous charges on April 15, 1994.

On August 21, 1996, the State filed a new petition to revoke the suspended sentences in all three convictions. Again, the prosecution alleged Thompson had failed to pay restitution. On July 11, 1997, the trial court granted revocation, but withheld imposition of the order for ninety days to permit Thompson to make three restitution payments of $100 in successive months beginning on July 15, 1997. On July 26, 1998, police arrested Thompson, and charged him with possession of cocaine and driving while intoxicated. Due to these new violations, the prosecutor filed another petition to revoke on March 31, 1999, based on Thompson's failure to pay restitution. The prosecutor amended this petition on June 16, 1999, to include the additional criminal charges as grounds for revocation.

The trial court held a hearing on the revocation petition on August 11, 1999. There, the prosecutor entered into evidence the court's payment ledger indicating that Thompson had only paid $125 in restitution. The State also put on James Hayes, a Fort Smith police officer, who testified that he arrested Thompson on July 26, 1998, for DWI, and incident to that arrest found a packet of crack cocaine in his police cruiser after Thompson had exited the vehicle. During the hearing, Thompson's counsel did not move for a directed verdict at either the close of the State's or the defense's case. The trial court found that Thompson had violated the terms and conditions of his suspended sentence and revoked the suspended sentences. The court ordered Thompson to ADC for concurrent sentences of twenty-four months each on the robbery and burglary convictions, and twenty-three months on the possession conviction.

Thompson appealed this decision to the Arkansas Court of Appeals on August 27, 1999, arguing that there was not sufficient evidence to support the revocation of his suspended sentences. The court of appeals issued its decision on May 3, 2000, finding that this issue was not preserved for appeal because Thompson failed to make a directed-verdict motion at the close of the State's or defense's case. The court of appeals relied on its recent decision in Miner v. State, 70Ark. App. 142, 15S.W.3d 356 (2000)² , for the proposition that the directed-verdict motion is now required at the close of the State's evidence and at the close of all evidence pursuant to Ark. R. Crim. P. 33.1 to preserve a challenge to the sufficiency of the evidence on appeal.

Following this decision, Thompson filed a Petition for Review on May 15, 2000, arguing that the court of appeals's application of Rule 33.1 exceeded the scope of the rule. In his brief on appeal, Thompson restates that argument citing state and federal cases to the effect that a revocation hearing is different than a trial.

Standard of Review

On a Petition for Review, this court reviews the case as if the appeal had originally been filed in this court. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999); State v. Brunson, 327 Ark. 567, 570, 940 S.W.2d 440 (1997); Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). To revoke probation or a suspended sentence, the burden is on the State to prove a violation of a condition by a preponderance of the evidence, and on appellate review the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id.

Scope and applicability of Rule 33.1

In his Petition for Review, Thompson argues that the court of appeals erred in refusing to consider his sufficiency challenge based on his failure to move for a directed verdict at the revocation hearing. Thompson contends that Rule 33.1 of the Arkansas Rules of Criminal Procedure does not apply to a revocation "hearing" because the rule by its express language only applies to jury and nonjury "trials." Thompson asserts that since a revocation hearing is not a trial no motion for directed verdict is required.

In response, the State argues that while revocation hearings and trials to determine guilt are not equivalent criminal proceedings in all respects, they are, nonetheless, criminal proceedings to which Rule 33.1 would apply. The State takes this position noting that the trial court acts...