ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

MURRAY P. TURNER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR03-1110

JUNE 23, 2004

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT,

NO. CR91-358B,

HON. RALPH EDWIN WILSON, JR., JUDGE

AFFIRMED

                                                                                                                            Sam Bird, Judge

Appellant Murray Purnell Turner brings this appeal contending that the evidence presented by the State failed to establish by a preponderance of the evidence that he had violated the conditions of his suspended sentence. We disagree with this argument and we affirm.

On October 28, 1991, appellant pled guilty to residential burglary and theft of property and was sentenced to ten years' imprisonment in the Arkansas Department of Correction on the theft-of-property charge, and given a suspended imposition of sentence for twenty years for residential burglary. On February 7, 2003, the State filed a petition for revocation of the suspended sentence alleging that appellant had violated its conditions by associating with others who had committed crimes; by possessing alcohol; by committing theft of property and aggravated robbery; and by possessing stolen property.

At a March 7, 2003, hearing Lisa Jones testified that she was employed at Flash Market, a convenience store, on January 29, 2003, when the store was robbed by a man dressed in black and wearing a ski mask. She said that she grabbed some change and threw it in a bag. While she was gathering the change, the person who was robbing the store took a six pack of Bud Ice out of one of the store's coolers. He then requested Kool and Newport cigarettes. She stated that she gave him $98 in cash, the two packs of cigarettes, and the beer. When the police arrived, Jones gave a description of the robber as being about 5' 7½'' tall and thin. He was wearing a big jacket with a dark sweatshirt and hood.

Thomas Dill, a shift commander with the West Memphis Police Department, testified that on January 23, aggravated robberies took place at two different Flash Market locations. He said he was en route to the location of the first robbery when he realized that another officer with the department needed backup for a car he had stopped. He arrived to assist Officer Hampton, who had stopped the car driven by appellant. Dill testified that he looked inside appellant's car and saw a Flash Market bag with a large amount of rolled coins, half of a six pack of beer, and a large, black jacket. Appellant was placed under arrest. Dill testified that he had heard over the police radio a description of the person who had robbed the Flash Markets as wearing a black stocking mask pulled over his face and a long, heavy jacket.

Will Smith, a detective with the West Memphis police department, testified that he investigated the robberies of the two Flash Markets. He stated that he interviewed appellant and appellant informed him that he had given Steven Briscoe a ride to one of the Flash Markets where one of the robberies took place. Appellant stated that he had driven Briscoe's mother's car to the Flash Market.

The court found by a preponderance of the evidence that appellant had inexcusably failed to comply with certain conditions of his suspension order, those being that he lead a law-abiding life; be of good behavior and not violate any State, Federal or Municipal law; not possess any alcoholic beverage, marijuana, narcotics, or any illegal drug or controlled substances; or associate with those who do. The court then stated that when appellant was pulled over by the officers, he had beer within his reach or control. The court also found that appellant had inexcusably failed to comply with his suspension order by associating with a person that he had reason to believe had committed a crime or who was encouraging or planning a crime. The court found that Steven Briscoe was a three-time habitual offender and that appellant had admitted to being with Briscoe the evening he (appellant) was arrested. Finally, the court found that circumstantial evidence existed that appellant had committed, at least as an accomplice, the crimes of aggravated robbery and receiving stolen property. Appellant brings this appeal, contending that the evidence presented failed to establish by a preponderance of the evidence that he had violated the conditions of his suspension.

In order to revoke defendant's suspended sentence, the trial court must find by a preponderance of the evidence that the defendant inexcusably failed to comply with a condition of his suspended sentence. Ark. Code Ann. § 5-4-309(d) (Repl. 1997). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Jones v. State, Ark. , S.W.3d (May 27, 2004). Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspended sentence. Id. Thus, the burden on the State is not as great as in a revocation hearing. Furthermore, 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 trial judge's superior position on those matters. Id.

The court's findings that appellant had inexcusably failed to comply with a condition of his suspended sentence was not against a preponderance of the evidence. The State only needed to prove one violation of appellant's suspended sentence. Brock v. State, 70 Ark. App. 107, 14 S.W.3d 908 (2000). In the case at bar, appellant was pulled over and the police officers found alcohol in his car. In addition, appellant admitted to associating with Briscoe, who is a habitual offender. These two circumstances alone constitute evidence enough to find appellant had inexcusably failed to comply with the conditions of his suspended sentence.

Affirmed.

Gladwin and Griffen, JJ., agree.