Donnell Thomas v. State of Arkansas

2024 Ark. App. 436, 698 S.W.3d 665

• Court: Court of Appeals of Arkansas
• Decided: September 18, 2024
• Status: Published

Opinion

Cite as 2024 Ark. App. 436 ARKANSAS COURT OF APPEALS DIVISION III No. CR-23-789

DONNELL THOMAS APPELLANT Opinion Delivered September 18, 2024

V. APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-18-116]

STATE OF ARKANSAS HONORABLE JODI RAINES DENNIS, APPELLEE JUDGE

AFFIRMED

MIKE MURPHY, Judge The Jefferson County Circuit Court revoked appellant Donnell Thomas’s suspended

imposition of sentence and sentenced him to six years’ imprisonment. On appeal, Thomas

challenges the sufficiency of the evidence supporting the revocation. We affirm.

In August 2018, Thomas pleaded guilty to aggravated assault on a family or household

member, first-degree terroristic threatening, and possession of a firearm by certain persons

in case number 35CR-18-116. He was sentenced to seventy-two months’ suspended

imposition of sentence conditioned on his obeying all federal and state laws. He was further

forbidden to possess or be in the company of someone possessing a gun.

In 2020, Thomas was charged in Jefferson County with third-degree domestic

battering (second offense) in case number 35CR-20-470. As a result of the new charge, the

State petitioned the circuit court to revoke his suspended sentence in 35CR-18-116. In 2023, while the revocation in 35CR-18-116 was pending, Thomas was charged in the Jefferson

County Circuit Court with three counts of aggravated assault, two counts of terroristic

threatening, and two counts of possession of firearms by certain persons in case number

35CR-23-43. The State filed a supplemental revocation in 35CR-18-116, alleging that

Thomas had violated additional terms of his suspended sentence by committing the crimes

alleged in case number 35CR-23-43.

A revocation hearing was conducted on August 6, 2023, and concerning the charges

in 35CR-23-43, the testimony established the following. On November 12, 2022, Officers

Tiffany Wood and Britta Funderburg of the Pine Bluff Police Department responded to a

call from Willie Cotton at 109 Friendswood regarding gunshots in the area between the

hours of 2:00 a.m. and 4:00 a.m. Wood said that as she was talking with Cotton, Thomas’s

door was wide open, and she saw him walking around inside his house at 110 Friendswood.

Thomas stepped outside, and as Wood and Funderburg approached him to speak with him

about Cotton’s report of gunshots, they saw that he had a black pistol. The officers directed

him to put the gun down, but he refused. He then began to step inside his residence, aimed

the gun at the officers, and threatened to shoot them if they stepped on his property.

Both Wood and Funderburg identified Thomas as the man from the incident.

Detective Lesquinicia Smith also testified that she conducted a search warrant at

Thomas’s reported address on November 28 as a result of the November 12 incident.

Thomas was not at the residence during the search, but his friend was present and directed

Smith to Thomas’s room. During the search, she located spent shell casings, holsters,

2 cartridges, and bullets. She did not locate a gun, but Thomas’s friend told her that he had

seen Thomas with a gun recently.

At the conclusion of the hearing, the court found that Thomas inexcusably violated

the conditions of his SIS. His SIS was revoked, and he was sentenced to six years in the

Arkansas Division of Correction on the original charge. Thomas filed a timely notice of

appeal.

To revoke probation or an SIS, the burden is on the State to prove the violation of a

condition of the probation or SIS by a preponderance of the evidence. Jones v. State, 355 Ark.

630, 144 S.W.3d 254 (2004). Because the burden of proof is by a preponderance of the

evidence rather than beyond a reasonable doubt, evidence that is insufficient to support a

criminal conviction may be sufficient to support a revocation. Id.

The circuit court did not err in finding that Thomas inexcusably violated the

condition of his SIS that required he not commit any crimes. 1 Due to the November 12

incident, Thomas was charged with three counts of aggravated assault, two counts of

terroristic threatening, and two counts of possession of firearms by certain persons.

A person commits terroristic threatening in violation of Arkansas Code Annotated

section 5-13-301(a)(1)(A) (Supp. 2021) if, “[w]ith the purpose of terrorizing another person,

the person threatens to cause death or serious physical injury or substantial property damage

1 The State contends that we need not address Thomas’s arguments because he failed to challenge the proof of all Thomas’s charges. We disagree and hold that Thomas’s argument generally addressed all the charges, thereby preserving his argument.

3 to another person.” The conduct prohibited by the terroristic-threatening statute “is the

communication of the threat with the purpose of terrorizing another. It is not necessary that

the recipient of the threat actually be terrorized.” Pinney v. State, 2020 Ark. App. 467, at 5,

609 S.W.3d 671, 676. The intent to terrorize is the intent “to fill the victim with intense

fright.” Id. at 5–6, 609 S.W.3d at 676.

The evidence demonstrated that both officers identified Thomas at the hearing as the

man who pointed his gun toward them the night of the incident. Both directed him to put

his gun down, but he ignored their request and stated he would shoot them if they came

onto his property. Wood testified she felt she was in danger, she immediately attempted to

notify her supervisor of the situation, and she drew her own weapon.

Thomas attempts to question Wood’s and Funderburg’s in-court identification of

him: he claims it was highly suggestive; he questions the credibility of their testimony because

the incident occurred nine months earlier; and at the time of the incident, Thomas was

wearing a hoodie and it was dark outside. When a witness makes a positive identification of

a subject, however, any challenge to the reliability of the identification becomes a matter of

credibility for the fact-finder to determine. Green v. State, 2024 Ark. App. 126, at 7, 685

S.W.3d 294, 299. Thomas’s argument on appeal essentially asks this court to reject the

court’s credibility determination and find the officers’ testimony unreliable, which, of

course, we do not do. See Shoulders v. State, 2020 Ark. App. 235, 598 S.W.3d 77. Given the

lower preponderance-of-the-evidence standard applicable in revocation proceedings, we find

4 no error with the circuit court’s conclusion that Thomas violated the terms and conditions

of his SIS.

Because proof of just one violation of the probation terms and conditions is sufficient

to support revocation, we affirm.

Affirmed.

VIRDEN and GLADWIN, JJ., agree.

Erin W. Lewis, for appellant.

Tim Griffin, Att’y Gen., by: James Hill, Ass’t Att’y Gen., for appellee.