Banks. v. State , 2014 Ark. App. 639 ( 2014 )

Cite as 2014 Ark. App. 639
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-14-313
TYREE BANKS Opinion Delivered NOVEMBER 12, 2014
APPELLANT
APPEAL FROM THE CRAIGHEAD
V. COUNTY CIRCUIT COURT,
WESTERN DISTRICT
[NO. CR-11-734]
STATE OF ARKANSAS HONORABLE DAVID RAY GOODSON,
APPELLEE JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
In October 2011, appellant Tyree Banks pleaded guilty to forgery and was placed on
probation for five years. Conditions of his probation included not committing a criminal
offense punishable by imprisonment; not using, selling, distributing, or possessing any
controlled substance or associating with any person participating or known to participate in
the illegal use, sale, distribution, or possession of controlled substances; paying a probation fee
of $35 per month; and paying restitution of $496.10 and $1056 in costs, fees, and fines. Banks
was also required to allow his person, residence, motor vehicles, or other property to be
searched with or without a search warrant when requested by a law-enforcement officer.
The State filed a petition for revocation in November 2013, alleging that Banks had
violated his probation by failing to live a law-abiding life, possessing illegal drugs, and failing
to pay fines, costs, and restitution as directed. After a hearing, the trial court found that Banks
Cite as 2014 Ark. App. 639
had violated the terms of his probation and sentenced him to four years in the community
correction center, to be followed by an additional four years’ suspended imposition of
sentence. Banks now appeals, arguing that the trial court erred in revoking his probation
because he presented evidence that he was unable to pay the fees, costs, and restitution, and
because the possession charge was not substantiated by a preponderance of the evidence. We
affirm.
Standard of Review
A sentence of probation may be revoked when a trial court finds by a preponderance
of the evidence that the defendant has inexcusably failed to comply with a condition of
probation. Aikens v. State, 2014 Ark. App. 168. The appellate court will not reverse a
revocation unless the decision is clearly against the preponderance of the evidence, Denson v.
State, 2012 Ark. App. 105, and it defers to the trial court’s superior position to determine
credibility and the weight to be accorded testimony. Stultz v. State, 92 Ark. App. 204, 212
S.W.3d 42 (2005). The State need only show that the defendant committed one violation
to sustain a revocation. Maxwell v. State, 2010 Ark. App. 822.
Failure to Pay Fines, Costs, and Restitution
Banks first argues that the trial court erred in finding that he had violated the terms of
his probation by failing to pay fines, costs, and restitution. Where the alleged violation is a
failure to make court-ordered payments, it is the State’s burden, by a preponderance of the
evidence, to prove that the failure to pay was inexcusable. Phillips v. State, 101 Ark. App.
190, 272 S.W.3d 123 (2008). Once the State introduces evidence of nonpayment, a
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defendant then bears the burden of going forward with some reasonable excuse for his failure
to pay. Id.
The State presented evidence that Banks had made no payments on his obligations.
In support of his argument that the trial court erred in revoking him on this basis, Banks
points to his testimony that he was unable to pay these monetary amounts due to the
reduction in his social security disability check. He also contends that the trial court
recognized his inability to pay when it decreased his monthly payments from $50 to $25.
However, Banks also testified that at the time he was placed on probation in October 2011,
he could have made payments for about a year. Banks’s own testimony is sufficient to show
by a preponderance of the evidence that he had the ability for a period of time to make some
effort toward paying his fines, costs, and restitution when he was placed on probation but did
not do so.
Possession of Illegal Drugs
While the failure to pay his financial obligations is sufficient to support the revocation
of Banks’s probation, Banks also argues that the State did not prove that he possessed illegal
drugs by a preponderance of the evidence. A search of Banks’s apartment was conducted on
August 28, 2013, due to information from a confidential informant that drugs were being sold
out of the apartment. The search revealed marijuana, two sets of digital scales, baggies,
methamphetamine, and one Xanax pill, all of which Banks denied belonged to him. The
scales and baggies were found in the kitchen. When officers searched the one bedroom in the
apartment, they found a blue plastic tote in the bedroom closet. In that tote, they found
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several citations bearing Banks’s name, and a black jacket. Inside the jacket pocket, the officer
found the illegal drugs. Banks admitted that the jacket belonged to him but denied knowing
anything about the contraband found in the jacket. Banks testified that people were in and
out of his apartment and that he did not know what was going on in his apartment that night.
On appeal, Banks argues that there was more than one person in his apartment that
night (the police even found one man hiding in a closet during the search); that he denied the
drugs were his; and that the police did not fingerprint the drugs. Banks further contends that
there must be corroborating evidence to uphold a conviction.
Banks is incorrect. In probation-revocation proceedings, the State must prove that the
appellant violated a term of his probation, as alleged in the revocation petition, by a
preponderance of the evidence. Rowe v. State, 2014 Ark. App. 446. Furthermore, the rules
of evidence do not strictly apply in revocation proceedings, and evidence that is insufficient
to sustain a conviction may be sufficient to establish a criminal act for purposes of revocation.
Id.
Here, illegal drugs were found in Banks’s jacket pocket, in a plastic tote in Banks’s
bedroom closet. This is sufficient evidence to prove by a preponderance of the evidence that
Banks possessed illegal drugs in violation of the terms of his probation.
Affirmed.
VAUGHT and WOOD, JJ., agree.
Terry Goodwin Jones, for appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.
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