DAVID LEE DANIELS, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-17-1342] HONORABLE STEPHEN TABOR, JUDGE
Law Firm, P.A., by: William Ogles, for appellant.
Rutledge, Att'y Gen., by: Michael Y. Yarbrough, Ass't
Att'y Gen., for appellee.
MARK KLAPPENBACH, JUDGE
January 2018, appellant David Lee Daniels, Jr., received a
six-year suspended imposition of sentence (SIS) after
pleading guilty to aggravated assault on a family or
household member. In December 2018, the State filed a
petition to revoke alleging that appellant had violated the
terms and conditions of his SIS by committing the new offense
of possession of oxycodone and by failing to pay his fine,
costs, and fees. Following a hearing, the circuit court
revoked appellant's SIS and sentenced him to four
years' imprisonment and two years' SIS. Appellant
appeals from the revocation, and we affirm.
revoke a suspended sentence, the State bears the burden of
proving by a preponderance of the evidence that the defendant
violated a condition of the suspended sentence. Von Holt
v. State, 2017 Ark.App. 314, 524 S.W.3d 19. On appeal, a
circuit court's revocation of a suspended sentence will
be affirmed unless the decision is clearly against the
preponderance of the evidence. Id. Evidence that is
insufficient for a criminal conviction may be sufficient for
revocation of a suspended sentence. Id. When
multiple violations are alleged, a circuit court's
revocation will be affirmed if the evidence is sufficient to
establish that the appellant violated any one condition of
the SIS. Id.
the circuit court found that the State had proved both
violations alleged- possession of oxycodone and failure to
pay his fine, costs, and fees-and appellant challenges both
grounds on appeal. We affirm on the possession ground; thus,
it is unnecessary to address the failure-to-pay ground.
revocation hearing, Detective Stephen Becker testified that
in October 2018, he was dispatched to the home of Ms. Carla
Freeman, who wanted appellant removed from her home. Becker
found appellant asleep in the bedroom, and after waking him,
appellant sat on the side of the bed. Becker said that
appellant had a wadded-up piece of paper in his hand that he
dropped twice. After he dropped it the second time, Becker
asked appellant to hand it to him. Becker said that the piece
of paper contained pills that were later identified by the
crime lab as oxycodone. Becker said that appellant had a bag
containing pill bottles of several different prescription
medications, but none were for oxycodone.
testified that when he went to sleep on Ms. Freeman's
bed, there were pills and other items on the bed. He said
that he never had anything in his hand that he dropped and
then handed to the officer. Appellant said that the officer
picked something up off the floor, but he never saw what it
was. Appellant testified that he had twenty different
prescriptions, including one for oxycodone, but the pills the
officer found were not his.
first argues that he could not have illegally possessed the
oxycodone because he has a prescription for it. However,
appellant testified at the hearing that the pills found by
the officer were not his, and the officer testified that none
of the pill bottles belonging to appellant contained
oxycodone. Appellant also argues that there is a
"serious question" as to the ownership of the pills
and claims that the State's failure to have Ms. Freeman
testify is "very telling" and raises a presumption
that her testimony would have been unfavorable to the State.
This court has held, however, that there is no inference on
appeal that the testimony of a witness under the control of a
party would be unfavorable to that party when the witness is
not present at the trial and is not called to testify.
Barton v. Brockinton, 2017 Ark.App. 369, 524 S.W.3d
430. Furthermore, Ms. Freeman was not "under the
control" of the State, and as the State notes, even if
she had testified that the pills belonged to her, this would
not make appellant's possession of them legal.
defer to the circuit court's determinations regarding the
credibility of witnesses and the weight to be given
testimony. Siddiq v. State, 2016 Ark.App. 422, 502
S.W.3d 537. The officer's testimony was sufficient to
establish by a preponderance of the evidence that appellant
committed possession of a controlled substance. Accordingly,
we affirm the revocation.
Harrison and ...