Fred William English v. State of Arkansas

2021 Ark. App. 219, 622 S.W.3d 649

• Court: Court of Appeals of Arkansas
• Decided: May 5, 2021
• Status: Published

Opinion

Cite as 2021 Ark. App. 219 Elizabeth Perry ARKANSAS COURT OF APPEALS I attest to the accuracy and integrity of this document DIVISION III 2023.06.27 11:41:05 -05'00' No. CR-20-730 2023.001.20174 Opinion Delivered: May 5, 2021 FRED WILLIAM ENGLISH APPELLANT APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, EASTERN DISTRICT V. [NO. 16LCR-17-36]

HONORABLE DAN RITCHEY, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED

PHILLIP T. WHITEAKER, Judge

Fred English appeals the order of the Craighead County Circuit Court revoking his

probation and sentencing him to the Arkansas Department of Correction. On appeal,

English challenges the sufficiency of the evidence supporting the court’s decision to revoke.

We affirm.

To revoke probation, the circuit court must find by a preponderance of the evidence

that the defendant has inexcusably violated a condition of the probation or suspension.

Springs v. State, 2017 Ark. App. 364, 525 S.W.3d 490. The State’s burden of proof in a

revocation proceeding is lower than that required to convict in a criminal trial, and evidence

that is insufficient for a conviction thus may be sufficient for a revocation. Id. Furthermore,

the State does not have to prove every allegation in its petition, and proof of only one

violation is sufficient to sustain a revocation. Mathis v. State, 2021 Ark. App. 49, 616 S.W.3d

274. On appellate review, we uphold the circuit court’s findings unless they are clearly

against the preponderance of the evidence. Id. Because the determination of a

preponderance of the evidence turns on questions of credibility and weight to be given to

the testimony, we defer to the circuit court’s superior position. Burgess v. State, 2021 Ark.

App. 54.

English pled guilty in March 2018 to one count of theft of property and was

sentenced to sixty months’ probation, subject to certain terms and conditions. He was

prohibited from committing a criminal offense punishable by imprisonment and prohibited

from using, selling, distributing, or possessing any controlled substance. He was further

ordered to report to a supervising officer and notify his supervising officer of any change of

address as well as pay restitution in the amount of $3,800 and other court costs and fees.

The State filed a petition to revoke English’s probation in November 2019. The

State alleged that English had failed to live a crime-free life; failed to report; admitted using

controlled substances; made his whereabouts unknown in an effort to avoid supervision; and

had a total balance of $4,470 owing on his restitution, court costs, and fees.

The circuit court held a hearing on the State’s petition. Without objection, the State

introduced a certified copy of a sentencing order from the Poinsett County Circuit Court

reflecting that English had been convicted in December 2019 of possession of

methamphetamine or cocaine with purpose to deliver. Chad Davis, English’s probation

officer, testified that English failed to report as required numerous times, confessed to

methamphetamine or marijuana usage on five different occasions between June and

September 2018, and was behind on his supervision fees. The State also introduced a

payment-plan history from the sheriff’s department showing the remaining balance owed

2 on English’s restitution and other costs. After the State concluded its case, English advised

the court that he did not wish to testify and then rested without presenting any evidence or

testimony.

The circuit court found that English had violated the terms and conditions of his

probation on numerous bases: he failed to live a crime-free life and committed the offense

of possession of a controlled substance with the purpose to deliver; he failed to report

regularly as directed; he admitted using methamphetamine and marijuana while on

probation; he failed to make his whereabouts known to his supervisor; and he failed to make

any payments toward his fines and costs, and there was no evidence to indicate an inability

to pay. Accordingly, the court revoked English’s probation and sentenced him to fifty-four

months in the Arkansas Department of Correction followed by eighteen months’ suspended

imposition of sentence. Following entry of the sentencing order, English filed a timely

notice of appeal.

On appeal, English argues that there was insufficient evidence to support the

revocation of his probation. He bases his argument on his cross-examination of Davis.

During cross-examination, Davis acknowledged that English might have been homeless

during his period of supervision, that his only income came from Social-Security benefits,

and that he did not have a vehicle. English asserts that this cross-examination proved “[his]

inability to adhere to the rules and conditions of probation without assistance.” English

concludes that because he “had issues that required assistance,” he was unable to comply

with the terms and conditions of his probation, and the circuit court therefore erred in

revoking his probation.

3 We affirm the revocation of English’s probation without addressing the merits of his

argument. When multiple offenses are alleged as justification for revocation of probation,

the circuit court’s finding that revocation is justified must be affirmed if the evidence is

sufficient to establish that the appellant committed any one of the offenses. Williams v. State,

2015 Ark. App. 245, at 10, 459 S.W.3d 814, 820. Moreover, when a circuit court bases its

decision on multiple, independent grounds and an appellant challenges only one of those

grounds on appeal, we can affirm without addressing the merits of the argument. Id.

Here, the State alleged multiple offenses in its revocation petition, including English’s

conviction for committing a drug offense and his multiple admissions to using controlled

substances. The circuit court revoked English’s probation on multiple violations, including

his December 2019 Poinsett County conviction and his admitted drug usage. On appeal,

English argues only that he had reasonable excuses for failing to comply with the reporting

and payment conditions. He does not challenge the other independent bases for the circuit

court’s revocation decision; therefore, we affirm. See Breeden v. State, 2013 Ark. App. 522

(affirming without addressing appellant’s argument that he excusably failed to refrain from

using drugs when appellant did not address the circuit court’s alternative finding that he

failed to report to his probation officer).

Affirmed.

KLAPPENBACH and VAUGHT, JJ., agree.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael L. Yarbrough, Ass’t Att’y Gen., for appellee.