concurring. I wholeheartedly agree with the conclusion stated in the majority opinion. I write separately to emphasize our very limited standard of review of revocation hearings, and to clarify the inappropriate characterization of appellant’s circumstances by the dissent.
The State has the burden of proof to establish that the appellant violated the terms of his suspended sentence or probation by a preponderance of the evidence. Deere v. State, 59 Ark. App. 174, 954 S.W.2d 943 (1997). A preponderance of the evidence is the greater evidence when compared to that opposed to it. Missouri Pac. R.R. Co. v. Hancock, 195 Ark. 414, 113 S.W. 2d 489 (1938). On appeal, we reverse the trial court only if we determine that the evidence is clearly against the preponderance of the evidence, Pearson v. State, 262 Ark. 513, 558 S.W. 2d 149 (1977), and we need not review the evidence in the fight most favorable to the State to make that determination. See contra Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). When considering the preponderance of the evidence, it does not matter to what degree the evidence in favor of the trial court’s judgment outweighs that opposed to it, only that the evidence is sufficient to support the trial court’s finding, even if that evidence only minutely outweighs that opposed to it. Because we review a cold record, we must give considerable deference to the trial court’s findings on credibility issues. Hyde v. State, 59 Ark. App. 131, 953 S.W. 2d 911 (1997). In a revocation proceeding, it is equally important for this Court to give deference to the trial court in its superior position to consider the demeanor of the parties — things that a record cannot reflect, such as facial expression, speech intonation, and the sincerity of the defendant. Although we may question the ultimate disposition of the case, we must affirm if the revocation was not clearly against the preponderance of the evidence and within the range of punishment allowed by law.
In this case, two weeks after the court suspended the appellant’s sentence for robbery, the appellant served four months in the Department of Correction for committing another felony offense. Shortly after his release from the Department of Correction, the appellant enrolled in public school. Within a month, he was suspended for ten days for disrupting school by allegedly engaging in gang activity. Not long after his suspension from school, the appellant was arrested at 2 a.m. for contributing to the delinquency of a minor and possession of marijuana.1 Since the rules of evidence do not apply in revocation matters, it is appropriate for the trial court to consider appellant’s criminal history. See Palmer v. State, 60 Ark. App. 97, 105, 959 S.W.2d 420, 424 (1998). Under the facts of this case, I cannot say that the trial court’s revocation of appellant’s suspended sentence is clearly against the preponderance of the evidence. To the contrary, the findings of the trial court indicate that the trial judge was sympathetic to the age and circumstances of the appellant.
The dissenting opinion strongly argues that the appellant did not violate the “good faith” requirement that he obtain a high school diploma or G.E.D. certificate because he enrolled in the G.E.D. program but never attended because he was arrested for the violations. I would point out that the appellant’s mother was the one who convinced the appellant to enroll in the G.E.D. program. There is nothing in the record to indicate that appellant himself initiated that particular conduct.
The dissenting opinion also suggests that the appellant should not have his suspended sentence revoked because of a few tardies, missing school once, and being suspended. I disagree with this characterization of the appellant’s incarceration. Lest we forget, the appellant committed a felony offense punishable by up to twenty years in the state penitentiary. He was not sentenced to the DOC for being suspended from school or because he was tardy from school. Only after the trial court bent over backwards to keep him out of prison was he finally sentenced for the underlying felony offense to which he pled guilty. While we would all prefer that our nation’s youth choose the path of education over that of criminal conduct, that decision is the offender’s and not ours.
For the reasons stated herein, I concur in the majority opinion.
This activity, if proven, would constitute two more good causes to revoke appellant’s suspended sentence.