JAMES MOSLEY, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE CRITTENDEN COUNTY CIRCUIT COURT [NO. CR-2005-334B]
HONORABLE JOHN N. FOGLEMAN, JUDGE
Donaldson, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
W. GRUBER, Judge.
February 3, 2006, James Mosley, Jr., pleaded guilty to two
counts of possessing a controlled substance with intent to
deliver; he was sentenced to 216 months' imprisonment on
the first count and 120 months' suspended imposition of
sentence on the second count. The conditions of his
suspension included a requirement that he "live a
law-abiding life, be of good behavior, and not violate any
state, federal, or municipal law." On December 30,
2014-after he was released on parole-the State filed a
petition to revoke suspension, alleging in part that he had
violated its conditions by committing kidnapping, aggravated
assault, possession of firearm by a felon, and third-degree
battery. At the conclusion of a revocation hearing, the court
granted the petition to revoke and sentenced Mosley to 144
months in the Arkansas Department of Correction. He timely
appeals the resultant sentencing order entered on June 16,
contends that the circuit court erred in finding that he
violated terms of his suspension. He argues that the court
failed to specify which criminal acts were proven and that
the State failed to offer sufficient proof of the presence of
physical injury, an element of third-degree battery. The
State responds that the record belies Mosley's claim
regarding the circuit court's failure to specify which
criminal acts were proven and that, as the court specifically
found, the State proved by a preponderance of the evidence
that crimes had been committed. The State asserts that any
degree of assault, battery, false imprisonment, or possession
of a firearm by a felon was a sufficient basis for
revocation. We affirm.
order to revoke a probation or a suspended imposition of
sentence, the circuit court must find by a preponderance of
the evidence that the defendant has inexcusably violated a
condition of the probation or suspension. Ark. Code Ann.
§ 16-93-308(d) (Supp. 2015). Thus, to sustain a
revocation, the State need show only that the defendant
committed one violation. Prackett v. State, 2014
Ark.App. 394, at 2.
that may not be sufficient to convict can be sufficient to
revoke due to the lower burden of proof required for
revocation. Newborn v. State, 91 Ark.App. 318, 210
S.W.3d 153 (2005). A circuit court's finding in
revocation proceedings will not be reversed on appeal unless
it is clearly against the preponderance of the evidence.
Id. Because the preponderance of the evidence turns
on questions of credibility and weight to be given testimony,
we defer to the superior position of the trial court to
decide these matters. Boyd v. State, 2014 Ark.App.
336. An appellant need not move for dismissal in a revocation
proceeding in order to challenge the sufficiency of the
evidence on appeal. Barbee v. State, 346 Ark. 185,
56 S.W.3d 370 (2001).
Atwann Stinnett and Carrell White testified that on December
16, 2014, they were met outside a house by a man and were
brought inside, where they were held while Mosley-armed with
a silver and black automatic gun-asked who was responsible
for a burglary of his "stuff." They testified that
Mosley hit, slapped, and kicked Stinnett until he agreed to
lead Mosley to the person responsible; that the two of them
were in the house about an hour and a half; and that, without
being released and while en route to another location, they
escaped. Stinnett testified that his face was bruised and
scratched by Mosley, who threatened that he or one of his
"home boys" would take Stinnett to the country and
kill him. Mosley testified in his own defense; he denied
holding Stinnett and White in the house, having a gun,
threatening to kill or batter Stinnett, or doing anything
more than talk to them about the missing $3000 and
circuit court, stating that the case came down to
credibility, found that the teenagers testified fairly
consistently about what had happened and that nothing
suggested a reason for them to lie. Noting testimony
"that the gun was being waved at the same time there
were threats" and that Mosley threatened to take
Stinnett out and kill him, the court discounted Mosley's
own testimony that he simply talked to Stinnett and White and
that they came and left voluntarily. It found by the
preponderance of evidence "that these two young men were
falsely imprisoned at the very least, that there was an
assault upon them, that Mr. Mosley was in possession of a
firearm as a [felon], and that he did commit battery in the
third degree." On this basis, the court granted the
petition to revoke.
person commits assault in the third degree if he or she
purposefully creates apprehension of imminent physical injury
in another person. Ark. Code Ann. § 5-13-207 (Repl.
2013). An individual commits battery in the third degree
when, with the purpose of causing physical injury to another
person, the individual causes physical harm to any person.
Ark. Code Ann. § 5-13-203(a)(1). A person commits false
imprisonment in the second degree if without consent and
lawful authority, the person knowingly restrains another
person so as to interfere substantially with the other
person's liberty. Ark. Code Ann. § 5-11-104(a).
Additionally, it is unlawful for an individual convicted of a
felony to possess a firearm under Ark. Code Ann. §
5-73-103(a)(1) (Repl. 2016). See also Pratt v.
State, 2011 Ark.App. 185, at 1 (stating that
"although evidence may be insufficient in a
probation-revocation proceeding to sustain an allegation that
appellant committed a specific offense, revocation will be
sustained if the evidence establishes a lesser-included
the conditions of Mosley's suspension required that he
not violate any laws. We cannot say that the circuit court
clearly erred in finding by a preponderance of the evidence
that Mosley committed the crimes of false imprisonment,
assault, possession of a firearm as a felon, and battery in
the third degree. Thus, we affirm the revocation of his
Abramson and ...