FROM THE SHARP COUNTY CIRCUIT COURT, [NOS. 68CR-12-173,
68CR-12-84, 68CR-13-106] HONORABLE HAROLD S. ERWIN, JUDGE
Starken, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge
Earl Baney has appealed from the revocation of his probation.
After the appeal was originally submitted, we ordered
supplementation of the record and rebriefing because Mr.
Baney's written conditions of probation were not
contained in the record or his addendum. See Baney v.
State, 2016 Ark.App. 405. The record and appellant's
addendum have now been supplemented with the written
conditions, and the case is ready for decision.
8, 2013, Mr. Baney was convicted of two counts of residential
burglary, two counts of theft of property, one count of
breaking or entering, and one count of aggravated cruelty to
a dog, cat, or horse. Mr. Baney was placed on ten years'
probation for each of the burglary and theft convictions, and
placed on six years' probation for each remaining
conviction. On October 2, 2015, the State filed a petition to
revoke appellant's probation, alleging that he violated
the conditions of his probation by incurring subsequent
felony charges, possessing a firearm, failing to be gainfully
employed or enrolled as a student, failing to seek out a
stable residence, and failing to pay fines and costs. After a
hearing, the trial court found that Mr. Baney violated his
conditions and revoked each of his probations. Upon
revocation, the trial court entered an order on October 8,
2015, sentencing appellant to a total of thirty years in
appeal from his revocation and resulting sentences, Mr. Baney
argues that there was insufficient evidence to support the
trial court's finding that he violated his conditions of
probation. We agree with Mr. Baney's argument, and we
to Arkansas Code Annotated section 16-93-308(d) (Repl. 2016),
a trial court may revoke a defendant's probation at any
time prior to the expiration of the period of probation if
the court finds by a preponderance of the evidence that the
defendant has inexcusably failed to comply with a term or
condition of his probation. The State has the burden of
proving that a condition of probation was violated. Jones
v. State, 2013 Ark.App. 466. The State need only show
that the defendant committed one violation in order to
sustain a revocation. Banks v. State, 2014 Ark.App.
639. On appellate review, the trial court's findings are
upheld unless they are clearly against the preponderance of
the evidence. Stultz v. State, 92 Ark.App. 204, 212
S.W.3d 42 (2005). Because of the lower burden of proof,
evidence that is insufficient to support a criminal
conviction may be sufficient for the revocation of a
suspended sentence. Knotts v. State, 2012 Ark.App.
121. The appellate courts defer to the trial court's
superior position to determine credibility and the weight to
be accorded testimony. Fleming v. State, 2016
Irvin, appellant's probation officer, testified at the
revocation hearing. Mr. Irvin testified that Mr. Baney had
been charged with aggravated robbery in a neighboring county.
Mr. Irvin further stated that, although Mr. Baney's
probation fees were current, Mr. Baney had failed to pay any
fines or restitution. Mr. Baney had also provided no proof of
employment. According to Mr. Irvin, Mr. Baney was living in a
camper in Mr. Baney's parents' front yard. Mr. Irvin
indicated that he had initially accepted this arrangement
because Mr. Baney had nowhere else to go, but that he later
told Mr. Baney to find a better place to live. Mr. Irvin
expressed concern because Mr. Baney was a level four sex
offender and there were children living in his parents'
Baney did not testify at the revocation hearing, but his
sister-in-law, Andrea Baney, testified on his behalf. Mrs.
Baney testified that she lives in Mr. Baney's
parents' house. She stated that Mr. Baney has lived in a
camper in the front yard since being placed on probation. It
was Mrs. Baney's understanding that this had been
approved by Mr. Baney's probation officer and that Mr.
Baney was allowed to live there as long as they locked the
doors at night.
conclusion of the revocation hearing the trial court found
that Mr. Baney had violated his conditions of probation,
making these specific findings:
The court finds as a matter of fact that he is living in a
residence with a level four sex offender that he has
refused to move out of. That he has caught a new charge in
Baney argues that there was insufficient evidence to support
the trial court's finding that he violated his conditions
of probation, and we agree. The trial court specifically
found that Mr. Baney violated his conditions because (1) he
refused to move from his current residence, and (2) he was
charged with a new ...