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, Atty Gen., by: Michael Y. Yarbrough, Asst Atty
Gen., for appellee.
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 appellants 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 courts 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 courts revocation
will be affirmed if the evidence is sufficient to establish
that the appellant violated any one condition of the SIS.
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
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.
Appellant testified that when he went to sleep on Ms.
Freemans 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 States 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
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 appellants
possession of them legal.
defer to the circuit courts 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 officers testimony was sufficient to
establish by a preponderance of the evidence that appellant