APPEAL
FROM THE MISSISSIPPI COUNTY CIRCUIT COURT, OSCEOLA DISTRICT
[NO. 47OCR-15-231] HONORABLE RALPH WILSON, JR., JUDGE
Cullen
& Co., PLLC, by: Tim Cullen, for appellant.
Leslie
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for appellee.
WAYMOND M. BROWN, JUDGE.
Appellant
Ashton Clark appeals the revocation of his probation by the
Mississippi County Circuit Court for the underlying charge of
residential burglary. He argues on appeal that his revocation
should be reversed because (1) there was no corroboration of
his codefendant's testimony and (2) the revocation should
have been deferred until after the new murder charge was
adjudicated. We affirm.
On
December 18, 2015, Clark was charged with residential
burglary and theft of property. He pled guilty to residential
burglary and the theft charge was nol prossed. He was
sentenced on April 4, 2016, to five years' probation and
ordered to pay fines, fees, and costs. As a condition of his
probation, he was ordered "not to commit a criminal
offense punishable by imprisonment" and not to associate
with persons "engaged in criminal activity." The
State filed a petition to revoke on June 27, 2016, alleging
that appellant had violated the terms and conditions of his
probation by committing the offense of first-degree attempted
murder. The State filed an amended petition on December 5,
2016, alleging that appellant had violated the terms and
conditions of his probation by committing aggravated robbery
and capital murder on October 12, 2016, and by associating
with three other offenders while committing the crimes.
Appellant's
revocation hearing took place on March 5, 2018. Tresia
Seaton, chief deputy coroner for Mississippi County,
testified that she was on call on October 12, 2016, and
received a call at 7:28 p.m. concerning a deceased person on
the front lawn of 102 Parkway in Osceola. She stated that she
pronounced the victim, John David Williams, deceased at 7:50
p.m.
Detective
Jerry Hamilton of the Osceola Police Department stated that
he was called in to help on a large crime scene on October
12, 2016. He said that Williams was lying face down on a
four-way lug wrench with a large sum of money in his pocket.
He testified that he helped obtain video footage from the
victim's home as well as other houses. He said that based
on the videos, he was able to see that Williams was changing
wheels on his car when the suspects made contact with him in
his driveway. Williams ran, and the suspects chased him. He
stated that a muzzle blast could be seen before the suspects
ran back in the direction from which they came. He testified
that he was able to identify a car he knew from prior traffic
stops in the videos he obtained as belonging to Mildred and
Paul English. He described the vehicle as a black Buick
Rendezvous with chrome rims and a "Vote for David
Burnett" sign. He stated that in a "10 to 15 minute
timeframe, 6:55 to 7:10 p.m., [he saw] the vehicle come in to
Magnolia Drive and turns around and comes back out the other
way. The same vehicle again does the same thing. The last
time it enters, around 7:08, it stays for several minutes.
And that fits the timeframe of the murder." Detective
Hamilton stated that there was also video footage prior to
this time showing the same vehicle going up and down Parkway
in front of Williams's house. He continued to describe
the video footages and their importance to the murder case.
Harold
Weeden testified that he came in contact with appellant on
October 12, 2016, after shooting dice on Broadway. He stated
that appellant and Zebarious Hawkins were sitting in a Hummer
planning the robbery of Williams. Williams was chosen because
of a Facebook picture showing him and another person with a
lot of money. Weeden said that he and the others smoked
marijuana. He testified that Shakur Bingham showed up when
they were discussing the robbery and their need for guns. He
stated that Shakur had a silver 9-millimeter, so he got in
the Hummer with them. He said that they all left the Hummer
and got into his vehicle.
Weeden
stated that they rode around and went to "stakeout"
Williams to see what he was doing. He stated that they went
to Bingham's father's house on Parkway and that
Williams was putting rims on his car at that time. Weeden
testified that they went to Seminole Village and parked in
the last circle between two apartment complexes to see how
they "were going to approach the situation." They
got one gun from Bingham's sister, Rashida. He stated
that they then went to Dratashia Wilson's,
appellant's girlfriend's, house to get the camouflage
suit Hawkins wore along with a Scream mask. He stated that
they subsequently went to his house for a change of clothes.
He said that by this time, the plan had changed to where he
was going to be the one to rob Williams and appellant would
be the getaway driver since appellant was the only one with a
driver's license. He testified that Bingham's job was
to supply the guns. He stated the appellant agreed to be the
driver, stating, "Okay, I've just gotta drive,
that's it." He testified that they went back to
Seminole Village and parked. He stated that he and Hawkins
got out of the car and went through the back over a ditch.
Weeden said that he had the "two-shooter" and
Hawkins had the 9-millimeter. He said they saw Williams
changing his tire and that Williams stood up, said
"don't shoot me," and took off running. He
stated that Hawkins came out of the bushes and started firing
his weapon at Williams. He testified that he fled when
Hawkins started shooting because that was never part of the
plan. He said that he knew Williams because his sister used
to date Williams's brother. He testified that when he
returned to his vehicle, appellant was in the driver's
seat, Bingham was on the passenger side, and that he and
Hawkins got in the back. He stated that everyone asked
Hawkins why he shot his gun. He said that Bingham's
father called and said that Williams was dead over on
Parkway. He stated that they drove to his house on East
Alfalfa and subsequently split up. He said that he and
Hawkins got rid of their clothes but that appellant and
Bingham did not change clothes. He testified that they did
not get anything from the robbery. Weeden stated that he went
back to Jonesboro and called the police to turn himself in.
He admitted that he was wrong and would have to serve time
for his role in the crime.
On
cross-examination, Weeden stated that he had an agreement
with the State for fifteen years' imprisonment with five
years suspended on the charge of conspiracy to commit
first-degree murder.
Raymond
Trammel, former detective of the Osceola Police Department,
testified that he helped investigate Williams's murder
and subsequently obtained arrest warrants for appellant,
Hawkins, Bingham, and Weeden. He stated that Weeden turned
himself in and cooperated without any offer on the table.
Appellant
made a motion for directed verdict after the State rested,
contending that there had been no corroborating evidence to
indicate that appellant had any involvement in Williams's
death other than Weeden's testimony, who was a
codefendant. The State responded that corroboration of a
codefendant's testimony is not necessary in a revocation
proceeding. The court denied the motion, finding that the
State had made a prima facie case. The defense rested without
putting on evidence and renewed its directed-verdict motion.
It argued that the cases holding that corroboration is not
necessary in revocations "have either been overruled or
are no longer good law, or they should be overruled."
The court denied the motion and subsequently found that
appellant had violated the terms and conditions of his
probation by being an accomplice to capital murder and
aggravated robbery. Appellant was sentenced to twenty
years' imprisonment. The sentencing order was filed March
5, 2018. Appellant filed a timely notice of appeal on April
4, 2018. This appeal followed.
Pursuant
to Arkansas Code Annotated section 16-93-308(d),
[1] a
circuit court may revoke a defendant's probation at any
time prior to the expiration of the period of probation if a
preponderance of the evidence establishes the defendant
inexcusably failed to comply with a condition of the
probation.[2] The State's burden of proof in a
revocation proceeding is less than is required to convict in
a criminal trial, and evidence insufficient for a conviction
at a criminal trial may be sufficient for
revocation.[3] When the sufficiency of the evidence is
challenged on appeal from an order of revocation, the circuit
court's decision will not be reversed unless it is
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