FROM THE POLK COUNTY CIRCUIT COURT [NO. 57CR-14-112]
HONORABLE JERRY RYAN, JUDGE
Johnson, for appellant.
Rutledge, Att'y Gen., by: Valerie Glover Fortner,
Ass't Att'y Gen., for appellee.
F. VIRDEN, Judge.
January 2015, appellant Thomas Kidwell pleaded guilty to
theft of property and received six years' probation
subject to various terms and conditions. The State filed a
petition to revoke based on several violations of those terms
and conditions. Following a hearing, the Polk County Circuit
Court revoked Kidwell's probation and sentenced him to
serve six years in prison. On appeal, Kidwell asserts that
the trial court erred in revoking his probation. We affirm.
State alleged in its petition that Kidwell had failed to pay
fines, costs, and restitution; failed to report as directed;
failed to permit an officer to visit his home or place of
employment; failed to obtain permission before changing his
residence; failed to refrain from using controlled
substances; and failed to refrain from using alcohol. At the
revocation hearing, Brittany Quinn, Kidwell's probation
officer, testified that the terms and conditions of
Kidwell's probation had been explained to him and that he
had appeared to understand them.
further testified that Kidwell had failed to make any
payments on his fines, costs, and restitution; however, she
acknowledged that he was disabled and that payment of
supervision fees had been waived. Quinn testified that
Kidwell was instructed to report on Tuesdays and Thursdays
for group sessions and to call in for "Color of the
Day." She listed several dates on which Kidwell had
failed to report as directed. She testified that Kidwell had
reported on March 8, 2016-after the State had filed its
petition-and was arrested. Quinn further testified that she
had been unable to locate Kidwell at the only address he had
provided and that she did not know where Kidwell currently
lived. Quinn conceded that Kidwell could have lived at the
address provided and had simply not been there on the two
times she had attempted to visit. Quinn further stated that
Kidwell had tested positive for oxycodone and opiates on
"multiple" occasions and that he had tested
positive for alcohol. She said that, if Kidwell's
disability had resulted in back pain, his positive drug tests
could be explained, but she noted that the positive tests
would be excused only if he had a prescription for those
conclusion of the hearing, the trial court found that Kidwell
had "violated more than one of [the conditions] even if
you cut him some slack on a couple of things."
Standard of Review
court finds by a preponderance of the evidence that the
defendant has inexcusably failed to comply with a condition
of his probation, the court may revoke the probation at any
time prior to the expiration of the period of probation. Ark.
Code Ann. § 16-93-308(d) (Repl. 2016). The State need
only prove one violation of the terms and conditions of
probation to sustain a revocation. Clark v. State,
2016 Ark.App. 383. On appeal, the trial court's findings
will be upheld unless they are clearly against a
preponderance of the evidence. King v. State, 2016
Ark.App. 292, 494 S.W.3d 463. Because a determination of the
preponderance of the evidence turns heavily on questions of
credibility and weight to be given to the testimony, the
appellate courts defer to the trial court's superior
position in this regard. Id.
argues that the trial court erred in determining that he had
inexcusably violated a condition of his probation. He states
that his failure to pay fines, costs, and restitution should
be excused because he was on disability and because
supervision fees had been waived. He contends that reporting
for group sessions and calling in for "Color of the
Day" were not mentioned in the conditions of his
probation. He asserts that it was possible that he had lived
the entire time at the ...