DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR99-715

April 11, 2001

TIMOTHY ANDREW SPRINGS AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR95-920]

V. HON. MARK HEWETT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Timothy Springs appeals from the revocation of his suspended sentence. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel has filed a no-merit brief, and petitions this court to withdraw as counsel. Counsel's brief analyzes the adverse rulings that might support an appeal, and demonstrates why the appeal is without merit. The appellant has not filed pro se points with this court and the State did not file a response. We agree the appeal is without merit and affirm.

In 1995, appellant received a five-year suspended sentence for class D terroristic threatening. He was ordered not to associate with criminals, bad characters or persons planning or encouraging the violation of the law; not to possess any controlled substances, and not to violate any federal, state, or local law.1 He was also ordered to pay court costs of $100 at the rate of $50 per month beginning February 1, 1996. In August 1997, the State filed a petition to revoke appellant's suspended sentence, alleging that he violated the terms of his suspended sentence by possessing cocaine with the intent to deliver, by possessing marijuana, and by fleeing.

At the suppression hearing, Corporal Randall Patterson of the Fort Smith Police Department testified that on August 8, 1997, he stopped to assist Officer Matthew Holloway, who had pursued and stopped appellant and Shoney Allen in a vehicle that appeared to be speeding. When Patterson arrived, Holloway had both men out of the vehicle and was searching them for weapons. Patterson searched the vehicle for weapons. In the front seat of the vehicle, he found a pack of cigarettes that contained what appeared to be two marijuana joints in plain view between the clear cellophane surrounding the cigarette pack and the pack itself. Patterson also searched the path the vehicle had taken. He found a plastic Actron pill bottle approximately nine feet from the side of the road containing whatappeared to be crack cocaine rocks; further up the street he found a clear, plastic, sandwich-type bag containing what also appeared to be crack cocaine rocks. Patterson also testified that if Holloway were in the Crime Suppression Unit, that vehicle is unmarked and has a blue light on the dash behind the back seat.

Officer Holloway testified that at approximately 2:25 a.m., while on patrol, he observed a dark, older model pickup. As he attempted to get closer to the vehicle, it sped up. He activated his lights and siren and pursued the vehicle. He chased the vehicle for approximately four blocks, at a maximum speed of seventy miles per hour. Holloway identified appellant as the driver of the vehicle. He then stated that Officer Patterson, who had arrived to assist him, found a cigarette case in the car.

Appellant objected on the grounds that he was stopped for speeding, and the evidence seized in the vehicles was not relevant to show speeding. Appellant also asked that Patterson's testimony in this regard be stricken. Holloway responded that the initial stop was for speeding, but during the search of the vehicle for weapons, the cigarette pack with what appeared to be two marijuana cigarettes on the outside of the pack was in plain view, which prompted further investigation. The trial court denied appellant's motions.

Holloway further testified that the vehicle he was driving was white, has a spotlight, and is unmarked. He explained to the court that he has a one-million candlepower halogen light on his dashboard, a siren, and wigwag lights on the front of the vehicle. He stated that the lights on his vehicle are brighter than the regular lights on marked police cars.

Shoney Allen, the passenger in appellant's car, testified that on that day he andappellant were "riding around getting high." He testified that ingested some cocaine that he had bought from appellant. He stated that he noticed the police officer in pursuit of them, and he told appellant to pull over. Allen further stated that appellant "said he had some on him," and said he was not going to stop. Appellant then threw a baggy containing cocaine in Allen's lap and told him to get rid of it. Allen protested but threw the bag out of the passenger side. He also testified that appellant gave him a pill bottle containing cocaine and told him to get rid of it. However, Allen admitted that the marijuana was his. He testified that he told Detective Wayne Barnett that appellant had another sack of crack on him, but that he did not tell Barnett that appellant threw the second bag out of the truck. Allen denied that he attempted to sell cocaine to anyone that day.

At this point, appellant moved for a directed verdict. He argued that the evidence was insufficient to show that he knew he was being pursued by a law enforcement officer. He also moved to dismiss the possession charge, without specifying whether he was referring to the possession of crack or possession of cocaine charge. The trial court denied appellant's motions.

Appellant then presented his case. Dave Jones, an inmate from Cummings, testified that appellant and a man with a "nickname `D' or something like that" came to his house the same day that appellant was arrested. Jones stated that "D" sold him some "rock" when appellant went inside to make a telephone call.

Donald Newton then testified that he was over at appellant's house the same day he was arrested, and he struck up a conversation with Allen about old cars. The State objectedon relevancy grounds. The trial court made no ruling, but appellant began a different line of questioning. Appellant then asked Newton if he had seen anyone today (at the hearing) who tried to sell him any controlled substances. The State objected that the question was leading. The court overruled the objection. Newton identified Allen. Appellant then asked if Allen attempted to sell him drugs on the day appellant was arrested. The State again objected and the trial court overruled the objection. Newton did not answer the question directly; he merely stated that he only knew the person as "T" and that "T" sold him two ounces of drugs.

Detective Barnett, who questioned Allen, testified that Allen told him that he threw out the bag that appellant handed him but that appellant threw something else out of the other side of the vehicle.

After the State rested, appellant asked the court to dismiss the fleeing allegation on the basis that it was dark and the car was unmarked; therefore, he asserted the trier of fact would be required to speculate whether appellant knew he was being pursued by a police officer. Appellant further requested that the court dismiss the charge with respect to the two possession charges, since no marijuana was found on appellant's person and since his fingerprints were not found on the bag containing the cocaine. Appellant noted the apparent inconsistency in Allen's statement regarding whether appellant also threw out a bag of cocaine, and asserted that his testimony was too inconsistent for the trial court to accept.

The trial court dismissed the fleeing count, but found that the State had met its burden with regard to the two possession counts. The court revoked appellant's suspended sentenceand ordered him to serve six years in the Arkansas Department of Correction.

In reviewing counsel's motion to withdraw, the test is not whether this court thinks the trial court committed no reversible error, but rather whether the points to be raised on appeal would be "wholly frivolous." Anders, 386 U.S. at 744. In revocation proceedings, the State must prove by a preponderance of the evidence that the defendant has violated a condition of his probation. See Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). 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 Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). 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 for a probation revocation. 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.

Motion to Suppress

The first adverse ruling occurred when appellant objected to the admission of the fruits of the search of the vehicle and moved to strike Patterson's testimony in this regard, on the grounds that the search has to be connected with the offense for which the individual was arrested. However, our law is clear that the exclusionary rule does not apply in revocation hearings. See Miner v. State, 342 Ark. 283, 28 S.W.2d 280 (2000). Moreover,the testimony was directly relevant because it tended to prove two of the allegations in the State's petition to revoke, i.e., that he possessed marijuana and cocaine. Officer Holloway explained to the court that he stopped appellant for fleeing, and the subsequent search for weapons revealed the cigarette case with marijuana cigarettes in plain view, which led to further investigation, and ultimately led to the discovery of the bag of cocaine. On these facts, we hold that the trial court did not err in admitting the testimony regarding the fruits of the search.

Sufficiency of the Evidence

The second and third adverse rulings occurred when the trial court denied the State's motions to dismiss the possession charges. Here, appellant first moved at the close of the State's evidence stating, "We would move to dismiss the other count also; that's a pleading possession." At the close of the State's case, appellant stated:

As far as this other count goes, he's charged with possession of cocaine with intent to deliver and possession of marijuana. There was absolutely no marijuana that was found on his person, on [appellant's] person. As far as the possession of cocaine with intent to deliver, there was absolutely no physical evidence that any of [appellant's] fingerprints were found on any of these items.

Appellant further noted the inconsistency in Allen's statement to Barnett and in his testimony regarding whether appellant threw another bag of drugs out of the vehicle, stating, "this is just too big of an inconsistency to swallow." Appellant asked the court not to accept Allen's testimony.

In order to preserve an argument regarding the sufficiency of the evidence in a revocation proceeding, a defendant must move for dismissal, stating the specific groundstherefor. See Ark. R. Crim. P 33.1(b); Miner v. State, supra. Appellant's initial motion is problematic, because he appeared to ask for the dismissal of only one of the two counts of possession, but it is not clear which. However, in his second motion, he refers to both possession charges in the "other count;" thus, he was apparently moving for dismissal on both possession charges in his initial motion. While he did not specifically allege in what respect the State's proof was insufficient in his first motion, he did raise specific grounds in his renewal which is all that is required in a bench trial under Arkansas Rule of Criminal Procedure 33.1(b). Therefore, we are not precluded from addressing appellant's sufficiency argument.

It is unlawful under Arkansas law for any person to possess any controlled substance with the intent to deliver. See Ark. Code Ann. § 5-64-401 (Supp. 1999). Our supreme court has held that where the State proves actual delivery, there can be no question regarding a defendant's intent. See Moser v. State, 266 Ark. 200, 583 S.W.2d 15 (1979). Here, Allen testified that appellant sold him crack, which he ingested, and handed him a pill bottle and a plastic bag containing crack, which Allen threw out of the vehicle. Whether to believe Allen's testimony, in light of the other testimony that Allen had sold crack earlier that same day, was within the province of the trial court. We defer to the trial judge's superior position to make determinations of credibility and the weight to be given testimony. See Jones v. State, supra. Therefore, we hold that the trial court did not err in revoking appellant'ssuspended sentence on this ground.2

Excessive Sentence

Finally, appellant's counsel addresses the issue of whether appellant's sentence was excessive. Upon revoking appellant's suspended sentence, the trial court was authorized to impose any sentence it could have originally imposed for class D terroristic threatening, the charge for which appellant received a suspended sentence. See Ark. Code Ann. § 5-4-309(f)(1)(A) (Supp. 1999). Class D terroristic threatening is punishable by up to six years in jail. See Ark. Code Ann. §§ 5-13-301(2) & 5-4-401(5). Appellant's six-year sentence was within the statutory range; therefore, we hold it was not excessive. See Hunter v. State, 264 Ark. 195, 570 S.W.2d 267 (1978).

Affirmed.

Jennings and Bird, JJ., agree.

1 Appellant's counsel notes that the terms and conditions of appellant's suspended sentence state that he not violate any federal, state, or local law, whereas Arkansas Code Annotated section 5-4-303 (Supp. 1999) mandates that the court order the offender not commit any offense punishable by imprisonment. Appellant's counsel questions that this condition may be too broad, but this argument was not raised below. Moreover, section 5-4-403(a) provides that the conditions are upheld if they bear a reasonable relationship to either the crime committed or to future criminality. See Young v. State, 286 Ark. 413, 692 S.W.2d 752 (1985). In any regard, both of the charges in this case were punishable by imprisonment. See Ark. Code Ann. § 5-64-401 (Supp. 1999) & § 5-4-401 (Repl 1997) (providing that possession of cocaine with intent to deliver is, at minimum, a class C felony that carries a sentence of three to ten years); § 5-64-401 & § 5-4-401 (providing that possession of marijuana is, at minimum, a class A misdemeanor which carries a sentence of one year).

2 Appellant's counsel does not address the sufficiency of the evidence regarding appellant's possession of marijuana. However, even if the trial court committed error in revoking appellant's suspended sentence on this ground, the error is harmless. Because the State was only required to show that appellant violated a single condition of his suspended sentence, and because the evidence was sufficient to show that he possessed crack with the intent to deliver, we affirm.