FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66CR-12-61] HONORABLE JAMES O. COX, JUDGE
L. Dunagin, for appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
Floyd Dwayne Daffron appeals the sentencing order filed by
the Sebastian County Circuit Court on March 4, 2016, revoking
his suspended imposition of sentence (SIS) and sentencing him
to serve 12 months' imprisonment and 108 months' SIS.
On appeal, appellant's sole contention is that the State
failed to present sufficient evidence to support the
revocation. We affirm.
April 4, 2012, appellant filed a negotiated plea of guilty to
furnishing prohibited articles and was sentenced to sixty
months' SIS. The terms and conditions of his SIS, signed
by both the trial court and appellant, included that
appellant "not violate any federal, state, or municipal
law." On September 14, 2015, the State filed a petition
to revoke, alleging that appellant violated the terms and
conditions of his SIS on September 4, 2015 when he committed
the offenses of driving while intoxicated and refusing to
take a breath test. A revocation hearing was held on February
hearing, Officer Jeffrey Lum testified that he stopped
appellant on September 4, 2015, after he observed appellant
riding a scooter on the sidewalk, "swaying side to
side." Officer Lum testified that he noticed an odor of
intoxicants and that appellant's eyes were bloodshot and
watery. He also indicated that appellant had difficulty
following his directions and that appellant admitted that he
had had a few beers. After appellant failed the
field-sobriety tests, Officer Lum took him to the jail for a
breath test. After several attempts, Officer Lum was able to
get only one sufficient reading of 0.23, and he was unable to
get a final reading. Thus, Officer Lum testified that
appellant was arrested for driving on suspension, driving
while intoxicated, reckless driving, and refusing a breath
test. Finally, the State introduced, without objection, a
certified copy of a transcript of appellant's judgment
regarding the incident described by Officer Lum. The document
reflected that appellant had pleaded guilty to driving while
intoxicated and had been sentenced to serve fourteen days in
jail with credit for fourteen days served.
did not testify or offer any evidence of his own. At the
conclusion of the hearing, the trial court revoked
appellant's SIS and sentenced him to serve 12 months'
imprisonment and 108 months' SIS, and this appeal
challenge to the sufficiency of the evidence may be raised
for the first time in an appeal of a revocation in the
absence of a motion for a directed verdict. See Barbee v.
State, 346 Ark. 185, 56 S.W.3d 370 (2001). In a
revocation proceeding, the trial court must find by a
preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of his or her
suspension or probation, and on appellate review, we do not
reverse the trial court's decision unless it is clearly
against the preponderance of the evidence. Flemons v.
State, 2014 Ark.App. 131; Ark. Code Ann. §
16-93-308(d) (Supp. 2015). Because the burdens of proof are
different, evidence that is insufficient for a criminal
conviction may be sufficient for a probation or
suspended-sentence revocation. Bradley v. State, 347
Ark. 518, 65 S.W.3d 874 (2002). Since determination of a
preponderance of the evidence turns on questions of
credibility and weight to be given testimony, we defer to the
trial court's superior position. Id.
Furthermore, the State need only prove that the appellant
committed one violation of the conditions in order to revoke
appellant's sentence. Peals v. State, 2015
Ark.App. 1, 453 S.W.3d 151.
contends that the trial court erred in revoking his SIS.
Specifically, he argues that the State failed to show that he
committed the offense of driving while intoxicated because
the State failed to present any evidence or testimony to show
that "the scooter in fact met the definition of being a
motor vehicle." However, appellant's argument is
without merit. The State introduced evidence that appellant
had pleaded guilty to driving while intoxicated (second
offense), which is a violation of Arkansas Code Annotated
section 5-65-103(a) and is listed as an unclassified
misdemeanor under Arkansas Code Annotated section
5-65-111(b)(1). Therefore, appellant's guilty plea to the
incident was sufficient evidence for the trial court to find
by a preponderance of the evidence that he had violated a
condition of his suspension--not to violate any federal,
state, or municipal law. Thus, we affirm.
and Brown, JJ., agree.