ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION IV

COREY TERRELL HATCHETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-1099

January 14, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

CR 01-1761, CR 01-1902, CR 02-639

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

Larry D. Vaught, Judge

This is a no-merit appeal. On May 22, 2002, appellant Corey Terrell Hatchett stood trial in Pulaski County Circuit Court in Case No. CR-02-639 on two criminal charges, (1) robbery, a Class B felony, and (2) theft of property with a value of $500 or less, a Class A misdemeanor. The State also alleged that appellant was a habitual offender with more than one, but less than four, prior felony convictions. A circuit judge sat as the trier of fact and found appellant guilty of both charges. In a sentencing hearing held on June 12, 2002, the circuit court sentenced appellant, as a habitual offender, to five years' imprisonment for robbery.

Immediately following the trial in Case No. CR 02-639, probation revocation proceedings in two Pulaski County Circuit Court cases, No. CR 01-1761 and No. CR 01-1902, were held. The circuit court granted the State's probation revocation petition in both cases, and in each case sentenced appellant to five years' imprisonment, with four years' imprisonment suspended. These two sentences were run concurrently to each other and consecutively to the five-year sentence of imprisonment in Case No. CR 02-639, for a total of six years in the Arkansas Department of Correction.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, the appellant's counsel has filed a motion to withdraw on the grounds that this appeal is without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with a list of adverse rulings, and a record of all motions and requests made by the appellant, and denied by the court, and a statement of the reasons why counsel considers there to be nothing in the record that will support the appeal. The State concurs that the appellant's counsel has complied with Rule 4-3(j) and that the appeal has no merit. The clerk of this court furnished the appellant with a copy of his counsel's brief and notified him of his right to file pro se points of appeal; however, appellant has not filed a list of points. We agree that the appeal is without merit and affirm.

CR 02-639

At trial, the only rulings that were adverse to appellant were the denials of his motions to dismiss the robbery charge and the theft-of-property charge. A motion for a directed verdict, or in a non-jury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. See Walker v. State, 77 Ark. App. 122, 72 S.W.3d 517 (2002). Appellant made a motion to dismiss the charges at the close of the State's case and renewed his motion at the close of all of the evidence. When a defendant challenges the sufficiency of the evidence, this court considers only the evidence that supports the guilty verdict and views the evidence in the light most favorable to the State. Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002). The test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of the credibility of witnesses is for the fact finder. Id. Furthermore, the trial court is not required to believe any witness's testimony, especially that of the accused, since he is the person most interested in the outcome of the case. Id.

Rick Allen Harris, an assistant manager at the Blockbuster location where the theft and robbery occurred, testified that he was present in the store on the evening of January 22, 2002, when appellant was detected by the store's security system trying to remove a video cassette tape1 without renting it. Harris further testified that he approached appellant, who was near the door, felt the jacket worn by appellant, and discovered a video cassette, which he removed from appellant's jacket. He testified that he blocked appellant's path to keep him from leaving the store and had another employee call the police. Harris explained that after a few minutes of waiting, appellant tried to push past him. Harris testified that he grabbed appellant, and appellant pushed him through a large plate glass window and then ran out the exit door. There was additional testimony from the arresting officer, North Little Rock Police Officer Mark Wiggins, that subsequent to arrest, Miranda warnings, and interrogation, appellant told him that he had tried to steal a tape from the Blockbuster store.

We have consistently held that a shoplifter, who, after having been discovered trying to steal merchandise, shoves or pushes someone in order to escape, has committed robbery. Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989); Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984). With regard to the theft-of-property charge, appellant argued in his motion for dismissal that the State had failed to prove that the video cassette at issue was the property of the store. This argument was without merit because theft is an offense against possession and control of property, not against ownership of property. Hoover v. State, 262 Ark. 856, 562 S.W.2d 55 (1978).

Appellant's counsel also discusses the one-year sentence of incarceration entered against appellant regarding the misdemeanor theft of property. While counsel points out that the sentence would be illegal if appellant were ever ordered to serve the sentence in the county jail, there is nothing in the record indicating that appellant was ever committed to the county jail, but rather to the Arkansas Department of Correction. Appellant's sentence related to the misdemeanor conviction for theft of property would be satisfied by his five-year sentence for the felony conviction for robbery, pursuant to Ark. Code Ann. § 5-4-403(c)(1) (Supp. 2001).

CR 01-1761 and CR 01-1902

On October 17, 2001, appellant pled guilty to two counts of theft by receiving, as defined in Ark. Code Ann. § 5-36-106(a) (Repl.1997), in Case No. CR 01-1761. The same day, appellant also pled guilty to one count of theft by receiving in Case No. CR 01-1902. The charges stemmed from incidents occurring on or about January 2, 2001. On October 19, 2001, the circuit court entered a judgment and disposition order pursuant to which appellant was placed on five years' probation for each count of theft by receiving and fined $500. On February 22, 2002, the State filed petitions seeking revocation of appellant's probation, alleging that he had violated a condition of his probation by committing the offenses at issue in Case No. CR 02-639.

On May 22, 2002, after the conclusion of the trial in Case No. CR 02-639, probation revocation hearings were held for Case No. CR 01-1761 and Case No. CR 01-1902. Appellant stipulated that the evidence admitted in Case No. CR 02-639 would be admissible in the probation revocation proceedings. At the hearings, the State introduced evidence of the conditions of appellant's probation, one of which was that he not violate any state law. The State also presented proof that appellant had been made aware of the conditions of his probation. The circuit court granted both petitions for revocation of probation.

There were no objections made during the probation revocation proceedings in the two cases, and no adverse rulings other than the grant of the petitions for revocation. However, we have held that Ark. R. Crim. P. 33.1 and the requirements thereof, pertaining to motions for dismissal and directed verdicts, do not apply to revocation hearings. Accordingly, appellant could challenge whether the State introduced substantial evidence that he inexcusably violated one of the conditions of his probation for the first time on appeal. See Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). In a revocation proceeding, the burden is on the State to prove the violation of a condition of probation by a preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001) (citing Ark. Code Ann. § 5-4- 309 (Supp. 1999)). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. Id. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Id. Circumstantial evidence may be sufficient to warrant revocation. Id. In order for appellant's suspended sentence to be revoked, the State need only prove that he committed one violation of the conditions of probation. Rudd v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). As previously mentioned, in both hearings, the State proved the conditions of appellant's probation and proved that he violated the condition of each that he would not violate any Arkansas law by introducing, by stipulation, its proof from Case No CR 02-639.

From our review of the record and counsel's brief, we conclude that there has been full compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and that none of the rulings adverse to appellant provide a meritorious ground for reversal. Consequently, we grant counsel's request to be relieved and affirm appellant's conviction.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 Harris testified that the value of the video cassette was $100, and that neither he nor any other employee authorized appellant to remove the tape from the store.