FROM THE CRAWFORD COUNTY CIRCUIT COURT [NOS. 17CR-12-548,
17CR-15-700] HONORABLE MICHAEL MEDLOCK, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
KENNETH S. HIXSON, JUDGE.
appellant Jerry Joseph Oliver pleaded guilty to residential
burglary and theft of property, the trial court entered a
sentencing order on November 6, 2013, sentencing Mr. Oliver
to five years' imprisonment followed by a fifteen-year
suspended imposition of sentence for the residential burglary
conviction and a ten-year suspended imposition of sentence
for the theft conviction. On December 16, 2015, the State
filed a petition to revoke the suspended sentences, alleging
that Mr. Oliver had violated the conditions of his
suspensions by committing the new offenses of fleeing and
driving on a suspended license. After a revocation hearing,
the trial court found that Mr. Oliver had violated his
conditions and it revoked his suspensions. The trial court
entered a sentencing order on July 25, 2017, sentencing Mr.
Oliver to fifteen years in prison for residential burglary
and a ten-year suspended imposition of sentence for theft.
Oliver now appeals from his revocation and resulting
sentences. He argues on appeal that there was insufficient
evidence to revoke his suspensions because the only
identification of him as the perpetrator of the new offenses
was made from a suggestive and unreliable out-of-court
identification. We affirm.
revoke a suspended sentence, the trial court must find by a
preponderance of the evidence that the defendant has
inexcusably failed to comply with a condition of the
suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2017).
We do not reverse a trial court's decision to revoke
unless it is clearly against the preponderance of the
evidence. Daffron v. State, 2016 Ark.App. 486, 505
S.W.3d 209. Because the burdens of proof are different,
evidence that is insufficient for a criminal conviction may
be sufficient for a revocation. Id. Since
determinations of a preponderance of the evidence turn on
questions of credibility and weight to be given testimony, we
defer to the trial court's superior position.
first witness to testify at the revocation hearing was
Officer Joseph Porter, an investigator for the Crawford
County Sheriff's Department. Officer Porter was on patrol
with Officer Bradley Carney when they clocked a white truck
traveling at fifty-four m.p.h. in a twenty-five-m.p.h. zone.
The white truck sped through a stop sign, and the officers
activated the emergency lights and siren and gave pursuit.
According to Officer Porter, the driver of the truck refused
to pull over and continued to speed up, taking the officers
on a high-speed chase. Eventually the white truck veered off
the road, crashed through a fence, and stopped in a field.
The occupant of the truck fled on foot. Officer Porter stated
that they followed footprints from the truck across a creek
into a wooded area, but they could not locate the suspect. A
short time later, Officer Porter was informed that a state
patrolman had located Mr. Oliver in a ditch and arrested him.
According to the report, when Mr. Oliver was arrested he was
carrying a double-sided hand tool and he provided an
insurance card for a Ford Escort. The only thing Officer
Porter could recall about Mr. Oliver from the chase was that
he was wearing a baseball cap and had long hair. Officer
Porter testified that he did not see the driver of the truck
exit the vehicle, and he could not say whether Mr. Oliver was
the person who was driving the truck.
Carney also testified that the driver of the truck was
wearing a baseball cap and had long hair, but he did not see
the driver exit the truck and could not identify him. Officer
Carney believed that the tags on the truck identified the
truck as being owned by Mr. Oliver's sister.
Sam Bass, an investigator for the Arkansas State Police, also
became involved in the pursuit of the white truck that day.
Officer Bass testified that, after learning about the pursuit
of the white truck by other law enforcement, he gave chase in
his unmarked vehicle. Officer Bass activated his lights and
siren, but the driver of the white truck refused to stop.
According to Officer Bass, he then pulled his vehicle beside
the truck with his passenger window down, and he motioned for
the man to pull over. The driver of the white truck looked at
Officer Bass, nodded his head, and Officer Bass fell back in
behind him. Instead of pulling over, the white truck went
through a ditch and then a fence. Officer Bass did not see
the suspect exit the truck nor was he the officer who
Bass testified that when he had pulled up beside the truck,
he got a good visual of the driver. Officer Bass identified
Mr. Oliver in court as the driver of the white truck. He
stated further, "I was asked to identify the subject,
and I identified Jerry Oliver." At that point Mr.
Oliver's counsel objected, stating, "I believe this
identification is made out of court and there's been no
foundation as to whether it was a lineup, picture or anything
like that. I would argue it violates my client's due
process." The trial court admonished the prosecutor that
"you might give a little more foundation." Officer
Bass then testified that he was shown a photograph of Mr.
Oliver at the jail the next morning, that he recognized the
man, and that there was no doubt in his mind that Mr. Oliver
was the driver of the truck. There was no further objection,
and Mr. Oliver proceeded to cross-examine Officer Bass about
cross-examination, Officer Bass testified that they were
traveling at about sixty m.p.h. when he pulled his vehicle
beside the truck, that he was beside the truck for five or
ten seconds, and that it was "long enough for me to
acknowledge that he acknowledged seeing me." Officer
Bass stated that the only photograph he was shown the next
day at the jail was that of Mr. Oliver and that he recognized
his face. Officer Bass acknowledged that he did not describe
any facial features in his police report, and he could not
remember what color clothing Mr. Oliver was wearing.
conclusion of the revocation hearing, Mr. Oliver's
counsel made a motion to dismiss, stating:
Your Honor, we're going to move to dismiss based in part
on the illegal lineup. The officer was shown merely one
photo. It was overly suggestive. It violates my client's
due process rights. There's been no evidence presented
here today of who that vehicle actually belongs to.
There's just some speculation of one officer about
another officer that may have done some sort of digging as to
who the vehicle belonged to. We've got two officers here
that they didn't see-they didn't have a good look at
the individual. A third officer that put nothing in his
report about facial features, he just went down to the police
station the next day and identified a single-person lineup
basically. And there's no evidence-there's no
confessions, no evidence that that vehicle belonged to my
client and he had an insurance card of another vehicle. My