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BARNES v. STATE

May 7, 1973

ROBERT BARNES
V.
STATE OF ARKANSAS



Appeal from Pulaski Circuit Court, Fourth Division, Richard B. Adkisson, Judge; affirmed.

SYLLABUS BY THE COURT

1. CRIMINAL LAW - SUSPENDED SENTENCE, REVOCATION OF - REVIEW. - Trial court's action in revoking the suspension of a sentence will not be reversed on appeal unless there has been a gross abuse of the trial court's discretion.

2. CRIMINAL LAW - SUSPENDED SENTENCE, REVOCATION OF - CONVICTION OF SUBSEQUENT OFFENSE AS PREREQUISITE. - Conviction of a subsequent offense is not a prerequisite to revocation of a suspended sentence, nor does a mistrial resulting from a deadlocked jury in a subsequent offense preclude revocation.

3. CRIMINAL LAW - IMPERSONATING AN OFFICER - ACTIONS VIOLATIVE OF STATUTE. - It is not necessary that there be an actual undertaking to make an arrest to constitute the offense of impersonating an officer, but an attempt to exercise some of the powers, duties, functions or privileges incident to the office asserted to be held at the time are sufficient to constitute the offense denounced by Ark. Stat. Ann. 42-110 (Repl. 1964).

4. CRIMINAL LAW - SUSPENDED SENTENCE, REVOCATION OF - SUFFICIENCY OF EVIDENCE. - The sufficiency of the evidence to support revocation of a suspended sentence lies within the sound judicial discretion of the trial court, and there is not a gross abuse of that discretion unless there is no basis in fact for the court's action.

The opinion of the court was delivered by: John A. Fogleman, Justice.

Robert Barnes, the appellant herein, contends that the circuit court grossly abused its discretion by revoking the suspension of a sentence of 15 years' imprisonment imposed upon him on March 21, 1972, after his plea of guilty to a charge of assault with intent to rape. We affirm because we do not find such an abuse of discretion.

There was evidence on behalf of the state that when the circuit judge advised Barnes that his sentence would be suspended and that he would be placed on probation [254 Ark Page 405]

for three years, Barnes was told that his probation would be based on his good conduct. Thereafter, the court's probation officer, Harold Allison, read conditions of the probation and suspension to Barnes from a document entitled "Statement of the Court Respecting a Suspended Sentence" addressed to Barnes. These conditions required that appellant not violate any law, not associate with persons who have criminal records, report to the probation officer once a month, work regularly at a lawful occupation, seek psychiatric care and make the results of his psychiatric treatment known to the court. The probation officer also imposed a condition that appellant not carry any firearm. Allison testified that Barnes signed a statement accepting the conditions of the probation, and indicated to the probation officer that he understood its terms.

On April 26, 1972, appellant was charged by information with kidnapping in the second degree and rape in the first degree, both alleged to have been committed on the 19th and 20th days of April, 1972. On the preceding date, the state had filed a petition for revocation of probation A verdict of acquittal was directed on the kidnapping charge over the state's objection when the charges were brought to trial on May 24 and 25, but a mistrial resulted on the rape charge when the jury reported that it was deadlocked on a nine to three vote with no chance of reaching a verdict. Hearing on the petition for revocation was then held on May 31, resulting in the order and judgment from which this appeal is taken.

Appellant concedes that the action of the trial court in revoking the suspension of a sentence will not be reversed on appeal unless there has been a gross abuse of the trial court's discretion. Bodner v. State, 221 Ark. 545, 254 S.W.2d 463; Calloway v. State, 201 Ark. 542, 145 S.W.2d 353.

The petition for revocation charged that appellant had raped Carla McMullen, the alleged victim in the charge of rape on which there was a mistrial. It also alleged that Barnes had impersonated a police officer. The probation officer testified that even though he had gotten Barnes an appointment with the state psychiatrist, [254 Ark Page 406]

he had received no reports concerning any visit to any psychiatrist by Barnes. From the record of appellant's trial on the charges of kidnapping and rape, *fn1 we find that the Sheriff of Pulaski County testified that appellant had been issued an "active deputy sheriff's card" when he served as a North Little Rock policeman, but that in April 1971 Barnes had no authority to carry the card because he was no longer a member of the Pulaski County Sheriff's Department. This card was in appellant's possession when he was arrested on the rape charge.

The alleged victim of the kidnapping and rape testified, on the trial of those charges, that during a late evening automobile drive she went to her home in an apartment building in Little Rock after she noticed a car pursuing her, and that, when she pulled in her driveway, this vehicle was driven in behind her. According to her testimony, she acted as if she were leaving, and as she started to drive out of the driveway, appellant walked up to her car, identified himself as a county sheriff, ordered her to roll down her window, asked to see her driver's license, told her she was speeding, asked her what she'd had to drink, inquired whether she would be willing to go to the station and take a test, told her a $1,000 ...


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