Cite as 2014 Ark. App. 300
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-94
Opinion Delivered MAY 14, 2014
APPEAL FROM THE SEBASTIAN
JEREMY LEON STOCKTON COUNTY CIRCUIT COURT,
APPELLANT FORT SMITH AND GREENWOOD
DISTRICTS
V. [NOS. CR-1997-768, G-CR-2000-45,
CR-2000-587, CR-2004-959]
STATE OF ARKANSAS
APPELLEE HONORABLE STEPHEN TABOR,
JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
BILL H. WALMSLEY, Judge
Appellant Jeremy Stockton appeals from the revocation of his suspended imposition
of sentence (SIS) on five convictions. Pursuant to Anders v. California, 386 U.S. 738 (1967),
and Arkansas Supreme Court Rule 4-3(k)(1) (2013), appellant’s counsel has filed a no-merit
brief and a motion to withdraw alleging that there are no non-frivolous arguments that would
support an appeal.1 The clerk of this court attempted to notify appellant of his right to file
pro se points for reversal; however, the certified packet sent to appellant’s last known address
in the Arkansas Department of Correction was returned with a note that stated “paroled.”
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We previously ordered rebriefing in this matter due to counsel’s failure to include
necessary documents in the addendum and failure to address all adverse rulings. Stockton v.
State, 2014 Ark. App. 25. These deficiencies have now been corrected.
Cite as 2014 Ark. App. 300
Appellant’s counsel has no additional contact information, and appellant has not filed pro se
points. We affirm the revocations and grant the motion to withdraw.
On November 5, 2012, the trial court entered an order revoking appellant’s SIS for
the following convictions: theft by deception in CR-1997-768, theft by receiving in
G-CR-2000-45, second-degree forgery in CR-2000-587, residential burglary in
CR-2004-959, and theft of property in CR-2004-959. The trial court found that the State
had proved by a preponderance of the evidence that appellant inexcusably violated conditions
of his suspension by failing to pay restitution and committing sexual assault in the fourth
degree. Appellant timely appealed.
A request to withdraw on the ground that the appeal is wholly without merit shall be
accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1).
The brief shall contain an argument section that consists of a list of all rulings adverse to the
defendant made by the circuit court with an explanation as to why each adverse ruling is not
a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). In furtherance of the goal of
protecting constitutional rights, it is both the duty of counsel and of this court to perform a
full examination of the proceedings as a whole to decide if an appeal would be wholly
frivolous. Coleman v. State, 2014 Ark. App. 61, at 2.
The first adverse ruling was the trial court’s determination that it had jurisdiction to
revoke appellant’s SIS on his convictions for theft by deception, theft by receiving, and
second-degree forgery despite the fact that the periods of suspension had expired. As counsel
notes, if the court suspended imposition of sentence or placed a defendant on probation
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conditioned upon his making restitution, and the defendant has not satisfactorily made all of
his payments when the probation period has ended, the court may continue to assert
jurisdiction over the recalcitrant defendant and either extend the probation period as the court
deems necessary or revoke the defendant’s suspended sentence. Ark. Code Ann. § 16-93-311
(Supp. 2013). There was no dispute that appellant still owed restitution in these cases. Thus,
we agree with counsel that there is no meritorious ground for appeal based on this ruling.
Counsel next addresses the sufficiency of the evidence supporting the revocation
decision. To revoke probation, the burden is on the State to prove the violation of a
condition of the probation by a preponderance of the evidence. Boykins v. State, 2012 Ark.
App. 263. On appellate review, the trial court’s findings are upheld unless they are clearly
against the preponderance of the evidence. Id. Since the determination of the preponderance
of the evidence turns on questions of credibility and the weight to be given testimony, we
defer to the trial court’s superior position. Id.
At the revocation hearing, K.W. described an incident in January 2012 involving
appellant, her stepfather’s nephew. K.W. testified that as they were sitting in a car, appellant
kissed her, rubbed her breasts, and touched her “private parts” between her legs despite her
requests for him to stop. K.W. was fifteen years old at the time, and appellant was thirty-five.
As counsel notes, the trial court found K.W. credible, and the uncorroborated testimony of
the victim alone may be sufficient to sustain a conviction for sexual assault. Boykins, supra.
Pursuant to Arkansas Code Annotated section 5-14-127(a)(1)(B) (Repl. 2013), a person
commits sexual assault in the fourth degree if the person being twenty years of age or older
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engages in sexual contact with another person who is less than sixteen years of age and not
the person’s spouse. “Sexual contact” means any act of sexual gratification involving the
touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the
breast of a female. Ark. Code Ann. § 5-14-101(10) (Repl. 2013). K.W.’s testimony
established the elements for fourth-degree sexual assault, and no issue of arguable merit could
be raised on appeal to reverse this finding.
Lastly, counsel addresses two adverse evidentiary rulings made upon the State’s
objections to defense counsel’s questions. The trial court sustained the State’s objection to
counsel asking K.W. whether she had ever made another report of sexual assault. The trial
court also sustained an objection to counsel asking appellant’s mother whether it was in
appellant’s nature to touch a young lady in an inappropriate way. Counsel correctly notes that
the rules of evidence do not apply in revocation proceedings. Ark. R. Evid. 1101 (2013).
Furthermore, a trial court has broad discretion in evidentiary rulings. Jones v. State, 2012 Ark.
App. 69, 388 S.W.3d 503. We agree that these rulings provide no possible grounds for
reversal.
Based on our review of the record and the brief presented to this court, we conclude
that there has been full compliance with Rule 4-3(k) and that the appeal is wholly without
merit. Accordingly, we affirm the revocations and grant counsel’s motion to withdraw.
Affirmed; motion to withdraw granted.
WOOD and BROWN, JJ., agree.
Evan C. Bell, for appellant.
No response.
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