Dooly v. State

377 S.W.3d 471, 2010 Ark. App. 591, 2010 Ark. App. LEXIS 635
CourtCourt of Appeals of Arkansas
DecidedSeptember 15, 2010
DocketNo. CA CR 09-1007
StatusPublished
Cited by6 cases

This text of 377 S.W.3d 471 (Dooly v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dooly v. State, 377 S.W.3d 471, 2010 Ark. App. 591, 2010 Ark. App. LEXIS 635 (Ark. Ct. App. 2010).

Opinion

JOHN B. ROBBINS, Judge.

_JjOn November 15, 2000, appellant Danny Joe Dooly pleaded guilty to two counts of possession of methamphetamine with intent to deliver, and conspiracy to manufacture methamphetamine. For each offense, he was sentenced to twelve years in prison followed by a fifteen-year suspended imposition of sentence. Mr. Dooly was paroled from prison, and on April 12, 2006, he pleaded guilty to possession of methamphetamine. For that offense, Mr. Dooly was sentenced to two years in prison followed by an eight-year suspended imposition of sentence. A condition of appellant’s suspended sentences provided that he shall not violate any federal, state, or municipal law.

The State filed a petition to revoke Mr. Dooly’s suspended sentences on May 12, 2009. In the petition, the State alleged that on April 21, 2009, Mr. Dooly committed the | goffenses of aggravated assault, second-degree battery, and possession of drug paraphernalia. After a hearing, the trial court found that Mr. Dooly violated the terms of his release and revoked his suspended sentences. Upon revocation, the trial court entered a judgment and amended judgment, wherein Mr. Dooly was sentenced to concurrent twenty-eight-year prison terms for the two counts of possession of methamphetamine with intent to deliver and one count of conspiracy to manufacture methamphetamine. This twenty-eight-year term was ordered to run consecutively with an eight-year term for possession of methamphetamine, for an aggregate prison term -of thirty-six years. In order to correct a clerical error, the trial court entered a second amended judgment that was identical to the amended judgment, with the exception that the prison term for conspiracy to manufacture methamphetamine was reduced from twenty-eight to eighteen years. This correction left intact the aggregate thirty-six-year prison term.

Mr. Dooly now appeals from his revocation and sentence, raising three arguments for reversal. First, he argues that the State failed to prove by a preponderance of the evidence that he violated the terms of his suspended sentences. Next, he contends that the trial court erred in failing to notify him of the evidence relied on and the reasons for revoking his suspended sentences. Finally, Mr. Dooly asserts that the trial court abused its discretion when it sentenced him to consecutive prison terms. We affirm.

In revocation proceedings, the burden is on the State to prove a violation of a condition by a preponderance of the evidence. Jones v. State, 355 Ark. 630, 144 S.W.3d 25413(2004). The State’s burden of proof in a revocation proceeding is less than that required to convict in a criminal trial, and thus evidence that is insufficient for a conviction may be sufficient for a revocation. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). In order to revoke a suspended sentence, the State need only prove one violation. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). When the sufficiency of the evidence is challenged on appeal, we will not reverse a trial court’s decision to revoke unless its findings are clearly against the preponderance of the evidence. Leflore v. State, 79 Ark. App. 332, 87 S.W.3d 839 (2002). Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. Bradley, supra.

Stephen Tibbitts is the alleged assault and battery victim, and he testified for the State at the revocation hearing. Mr. Tib-bitts was working at Sharp’s Body Shop on April 21, 2009, when Mr. Dooly entered the premises and appeared to be intoxicated. Mr. Tibbitts testified that Mr. Dooly had a confrontation inside the office and that James Williams came running into the shop with Mr. Dooly following him, and Mr. Williams said that Mr. Dooly had just tried to rob him. The owner as well as Mr. Tibbitts advised Mr. Dooly to leave the property, but Mr. Dooly refused and threatened to “whoop” Mr. Tibbitts.

According to Mr. Tibbitts, an altercation ensued where “Danny swung on me a couple of times with his bare fists and I swung on him a couple of times.” Mr. Tibbitts | testified that Mr. Dooly hit him in the head, although he denied sustaining any injury and did not see Mr. Dooly wielding a weapon.

James Williams testified that he was working that day and was on the telephone with a client when Mr. Dooly approached him and demanded his watch. Mr. Williams tried to ignore him, but when Mr. Dooly reached into his back pocket Mr. Williams feared that Mr. Dooly was reaching for a weapon. That is when Mr. Williams went into the shop seeking help. Mr. Williams testified that Mr. Dooly “got into it” with Mr. Tibbitts and struck him in the head with his fist. According to Mr. Williams, Mr. Dooly then brought some kind of chain out of his pocket and hit Mr. Tibbitts in the head with the chain. The owner got between Mr. Dooly and Mr. Tibbitts and was able to separate them, and the police were called. Mr. Tibbitts had blood on him, and photographs admitted into evidence showed a cut on his forehead.

Dale Scarmardo was also working in the shop that day, and he testified that Mr. Dooly was wielding a chain-saw blade. Mr. Scarmardo was sure that he saw Mr. Dooly strike Mr. Tibbitts with the blade.

Officer Brian Rice of the Fort Smith Police Department responded to the call from Sharp’s Body Shop. The dispatcher described a disturbance involving weapons. Upon arrival, Officer Rice found Mr. Dooly in a chair in the office and took him into custody. He noted that Mr. Dooly seemed incoherent and under the influence of some type of drug. Officer Rice found a chainsaw blade with a handle next to Mr. Dooly on the floor.

| r,Officer Derek Harwood arrived at the shop after Mr. Dooly was in custody. Officer Harwood searched Mr. Dooly and found several baggies, one of which contained residue. Based on his training and experience, Officer Harwood testified that baggies are used for drugs. He acknowledged, however, that while the baggie containing residue was sent to the crime lab, he did not have a lab report.

For his first argument on appeal, Mr. Dooly argues that the State failed to prove any violation of his suspended sentences. He contends that the proof was insufficient to establish the allegations that he committed aggravated assault, second-degree battery, or possession of drug paraphernalia.

Pursuant to Ark.Code Ann. § 5-13-204(a)(1) (Supp.2009), a person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person. Mr. Dooly contends that the State failed to establish the above elements. He notes that in his testimony the alleged victim, Mr. Tibbitts, stated that he and Mr. Dooly “slapped back and forth at each other.” Moreover, Mr. Tibbitts did not see a weapon and denied sustaining any injury. Mr. Dooly further asserts that Mr. Tibbitts was equally at fault in causing the confrontation, and he notes inconsistencies among the testimony of the State’s witnesses.

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Bluebook (online)
377 S.W.3d 471, 2010 Ark. App. 591, 2010 Ark. App. LEXIS 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dooly-v-state-arkctapp-2010.