ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION I

CACR02-222

November 20, 2002

ROBERT E. MUNDAY AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR99-35]

V. HON. JAMES R. MARSCHEWSKI, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

The appellant, Robert E. Munday, appeals from an order revoking his suspended sentences and sentencing him to the Arkansas Department of Correction. Appellant's sole argument on appeal is that there was insufficient evidence to support the revocation. We disagree and affirm.

On October 11, 1999, appellant pled no contest to possession of marijuana, possession of drug paraphernalia, and felon in possession of a firearm, for which he was sentenced to the Arkansas Department of Correction for two years, with an additional eight years suspended on the offense of possession of drug paraphernalia and with an additional four years suspended on each of the other two offenses. The suspended sentences were conditioned on his good behavior, among other enumerated conditions.

On October 24, 2001, the State filed a petition to revoke appellant's suspended sentences alleging that he had committed third-degree domestic battery and rape on or between October 18, 2001, and October 21, 2001. After a revocation hearing, the trial court granted the State's petition and sentenced appellant to the Arkansas Department of Correction to four years for possession of marijuana, to eight years for possession of drug paraphernalia, and to four years for felon in possession of a firearm. It is from this judgment that the appellant now appeals.1

To revoke a suspended sentence, the trial court must find, by a preponderance of the evidence, that a defendant has violated a condition of his or her suspended sentence. Greene v. State, 324 Ark. 465, 921 S.W.2d 951 (1996). Since a determination of the preponderance of the evidence turns heavily on questions of credibility and weight to be given the testimony, the appellate court defers to the superior position of the trial court to evaluate the witnesses' demeanor and credibility and to resolve any discrepancies in their testimony. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Evidence that is insufficient to support a criminal conviction may be sufficient to support the trial court's revocation of a suspended sentence. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). Thus, a trial court's determination that a defendant has failed to comply with the conditions of asuspended sentence will not be reversed unless it is clearly against the preponderance of the evidence. Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998).

The State alleged that appellant committed the offenses of third-degree domestic battery and rape on Brenda Rose. Rose was the girlfriend of appellant and had lived with appellant for approximately six months prior to the alleged offenses. At the revocation hearing, Detective McCaslin testified that Rose came to the Forth Smith Police Department on October 21, 2001, to report that she had been assaulted. She had two black eyes, swelling around her face and behind her ears, and bruises. The State submitted photographs depicting Rose's injuries. Detective McCaslin stated that Rose told him that appellant had assaulted her physically and raped her vaginally, anally, and with an object. During his testimony, Detective McCaslin also mentioned that drug paraphernalia was found at appellant's residence.

Eunice Munday testified that she saw Rose on October 21, 2001, when she and her son met Rose at the Pachouli Police Station to pick up her grandson for visitation. Munday noticed that Rose had two black eyes, bruised lips, was crying and acting really jittery. Munday asked Rose what had happened, and Rose responded that appellant had raped and physically assaulted her. Rose testified that on October 18, 2001, appellant hit her in the face and on her buttocks with a spatula causing bruises on her face and body. Rose, however, recanted her prior story that appellant had raped her, although admitting she told Detective McCaslin otherwise. Rose claimed she made up the rape and kidnaping allegations out of fear that if she did not say enough to keep the appellant away from her andher son, her former in-laws would take her son away.

At the end of the hearing, the trial court found that a domestic battery had occurred beyond a reasonable doubt; that there was sufficient evidence that appellant had raped and kidnaped Rose, or at least illegally restrained her; and that appellant was involved in drug activity. Appellant argues that the State did not present sufficient evidence to find that he had violated the terms of his suspended sentence because Rose's testimony made for insufficient proof that he was guilty of any crime. More specifically, appellant argues that the evidence was insufficient to convict him because Rose's testimony at the hearing and her prior statements to Munday and Detective McCaslin were not credible because she made up the alleged offenses out of fear of losing her son.

Arkansas Code Annotated section 5-26-305 (Supp. 2001) provides that a person commits third-degree domestic battery, if with the purpose of causing physical injury to a family or household member, the person causes physical injury to that family or household member. Physical injury is defined as either the impairment of physical condition, the infliction of substantial pain, or the infliction of bruising, swelling, or visible marks associated with physical trauma. Ark. Code Ann. § 5-1-102 (14) (Supp. 2001). Although Rose recanted the rape allegation, she was consistent in her story that appellant hit her in the face causing swelling and bruising. This court has stated that variances and discrepancies in testimony go to the weight and credibility of the evidence, and it is within the province of fact-finder, in this case the trial court, to resolve any inconsistences in the testimony. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Moreover, both Munday andDetective McClasin testified to seeing Rose with blackened eyes, a swollen face, and bruises, and to her stating to them that appellant had caused her injuries. The State only needs to prove that appellant committed one violation of the conditions of his suspended sentences. Ramsey v. State, supra. Clearly, the evidence presented at the revocation hearing was sufficient to find that appellant had committed domestic battery, if nothing else.

Thus, based on a review of the above evidence, the trial court's finding that appellant had violated the terms and conditions of his suspended sentence was not clearly against the preponderance of the evidence.

Affirmed.

Hart and Jennings, JJ., agree.

1 The appellant failed to include the notice of appeal and designation of the record in his addendum. A review of the notice of appeal filed by an appellant is necessary in determining whether the appellate court had jurisdiction over a matter. See Ark. Sup. Ct. R. 4-2(a)(8) (2002). However, we have reviewed the transcript and note that appellant filed a timely notice of appeal on December 10, 2001. We have the authority to go to the record to affirm a trial court's decision, and we do so here. Hosey v. Burgess, 319 Ark. 183, 890 S.W.2d 262 (1995).