ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

SHERRELL JEAN WHISENANT

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-1417

FEBRUARY 4, 2004

APPEAL FROM THE PIKE COUNTY CIRCUIT COURT

[CR99-14]

HONORABLE TED C. CAPEHEART, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Sherrell Jean Whisenant, appeals the revocation of her probationary sentence claiming that there was insufficient evidence that she violated the terms of her probation by committing the offenses of possession of a firearm by a convicted felon, theft of property, unlawful use of a license, and financial identity fraud. Appellant was subsequently convicted of possession of a firearm by a convicted felon, theft of property, and financial identity fraud, and her appeal of those convictions is presently before this court in separate case number CACR 01-1418. We find no merit to her argument challenging the revocation of her probation and affirm.

To revoke probation or a suspension, the burden is on the State to prove the violation of a condition of the probation or suspension by a preponderance of the evidence. See Ark. Code Ann. § 5-4-309 (Supp. 2003); Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). On appeal, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation or suspended sentence revocation. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Thus, the burden on the State is not as great in a revocation hearing. Id. Since the determination of a preponderance of the evidence turns on

questions of credibility and weight to be given testimony, we defer to the trial judge's superior position. Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). In reaching that determination, the trial court is not required to believe a witness's self-serving testimony. See Sera v. State, 341 Ark. 415, 17 S.W.3d 61, cert. denied, 531 U.S. 998 (2000).

On February 18, 1999, an information was filed in the circuit court of Pike County charging appellant with the offense of arson, a Class A felony. On June 5, 2000, appellant pleaded guilty to an amended charge of fraudulent insurance acts, also a felony, and received a sentence of four years' probation. She was ordered to pay a $200 fine, $225 in court costs, $4,000 in restitution and a $20 per month probation supervision fee. On January 22, 2001, the State filed a petition to revoke appellant's probation alleging several grounds including the charges for which she was subsequently convicted. On May 22, 2001, the circuit court revoked appellant's probationary sentence and sentenced her to six years' imprisonment in the Arkansas Department of Correction.

Appellant admits that, at the time of the events involved, she was a convicted felon. She also admits that she took two firearms from her ex-husband and took them with her when she moved into Virgil Hellums IV's residence. She argues, however, that her possession of the weapons, while a technical violation, can hardly be said to be an inexcusable violation of the law. She asserts that she found the two weapons in her ex-husband's house, and knew that they had been claimed to have been destroyed in the fire. She claims that she took and kept the firearms as proof that she did not burn the house where these weapons were supposedly destroyed. She argues that they were proof that her husband started the fire; therefore, she was merely retaining evidence that would assist her defense if the State were to refile the arson charge during the year after the charge was dismissed. She also claimed that she never actually touched the guns but directed another to move the weapons.

In this appeal, appellant challenges only the sufficiency of the evidence. The judge found that appellant was in constructive possession of the firearms, directing her eleven-year-old son to carry the guns thereby making the child her agent. A preponderance of the evidence supports the circuit court's finding that appellant was a felon in possession of a firearm in violation of Ark. Code Ann. § 5-74-103(a)(1)(Supp. 2003). First, the State needs only to prove constructive possession and constructive possession can be implied when the item is in the joint control of the accused and another. Walley v. State, ___ Ark ___, 112 S.W.3d 349 (2003). When seeking to prove constructive possession, the State must establish (1) that the accused exercised care, control, and management over the contraband, and (2) that the accused knew the matter possessed was contraband. Id.; see also Darrough v. State, 322 Ark. 251, 908 S.W.2d 325 (1995); Plotts v. State, 297 Ark. 66, 759 S.W.2d 793 (1988).

Here, appellant testified that she initially took the guns from her former husband, that the guns were stored in her closet, and that she told her son to get the guns and put them in the van because she wasn't supposed to have them. Her own testimony provides sufficient evidence to support the judge's finding that she constructively possessed the firearms in question and knew that possession of the guns was prohibited. We also find no merit to her argument that her possession of the weapons was excusable because she needed the weapons in her possession as evidence of her innocence on the arson charge. Because the State needed only to prove one violation, e.g., Brock v. State, 70 Ark. App. 107, 109-10, 14 S.W.3d 908, 910 (2000), the foregoing is sufficient evidence to support the finding that appellant had violated the terms of her probationary sentence; we need not address appellant's remaining arguments concerning the additional charges that she violated her probationary sentence by committing theft of property and financial identity fraud.

Accordingly, we find no error and affirm.

Robbins and Roaf, JJ., agree.