Baker v. State

Cite as 2016 Ark. App. 468

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-84

Opinion Delivered October 5, 2016
JERROD TRISTAN BAKER
APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
V. FORT SMITH DISTRICT
[NO. CR-662014-607]
STATE OF ARKANSAS
APPELLEE HONORABLE J. MICHAEL
FITZHUGH, JUDGE

AFFIRMED

CLIFF HOOFMAN, Judge

Appellant Jerrod Tristan Baker appeals the revocation of his suspended imposition of

sentence (SIS). On appeal, he argues that there was insufficient evidence on which to revoke

his SIS. We affirm.

On March 18, 2015, appellant pleaded guilty to misdemeanor theft of property.

Appellant was placed on suspended imposition of sentence (SIS) for one year, contingent on

appellant’s compliance with certain conditions, which included that he not violate any federal,

state, or municipal laws. A judgment was entered on March 18, 2015, outlining the agreed

terms of one year of SIS with the specified conditions. Appellant’s signature is on this

judgment along with the trial judge’s signature.

The State initially filed a petition to revoke in August 2015, asserting the following

violations: (1) that on July 22, 2015, appellant had committed aggravated assault on a family
 Cite as 2016 Ark. App. 468

or household member and second-degree domestic battery and (2) that appellant had failed

to pay fines, fees, and costs as ordered. The State amended its petition in September 2015 to

restate the prior allegations and to allege additional criminal acts by appellant that had

occurred on September 20, 2015: (1) violation of an order of protection, (2) breaking or

entering, and (3) public intoxication.

The petition was heard on November 4, 2015. All of the criminal allegations related

to events involving Tracy Eckert, appellant’s former girlfriend. She testified that they dated

for about six months and lived together at her home in Greenwood, Arkansas, for about two

months. She explained that on July 22, 2015, they had argued and she told appellant that they

needed a break. Appellant went back later and broke the chain lock on the back door to

enter her home. Appellant entered her bedroom, pushed her off the bed, and hit her in the

face once or twice, although Tracy was not sure how many times he struck her. She said that

appellant also choked her; she could not breathe; she gagged and almost threw up, so he let

go; and she was scared. Tracy said that she suffered broken teeth, a broken nose, and a black

eye. Tracy reported this to the police the next morning, and pictures were taken of her

injuries. The color photographs were entered into evidence. Tracy obtained a protective

order that would be in effect for one year, and it prohibited appellant from initiating any

contact with her, directly or indirectly. The August 25, 2015 protective order was entered

into evidence.

On September 20, 2015, appellant was arrested at Tracy’s residence. Tracy and her

friend Whitney Smith were at Tracy’s house. Whitney testified that appellant had repeatedly

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called about coming over to the house, but she was certain that Tracy, who was in bed, did

not want him to come. Appellant came anyway, and as he was “beating on the door” and

kicking it, Whitney called 911. A Greenwood police officer responded to the call and found

appellant, who appeared to be intoxicated, hiding in a nearby shed.

Appellant’s mother testified on behalf of her son with regard to the events of

September 20, stating that he was invited to Tracy’s house even though he knew he was not

supposed to be at her house. On cross-examination, Whitney was asked whether she invited

appellant to Tracy’s house, based on certain text message exchanges. Whitney testified that

her text was not meant to be an invitation; rather, she was trying to determine if she needed

to take precautions if he did come.

The State entered into evidence a certified copy of the Greenwood, Arkansas, district

court transcript of judgment, wherein appellant pleaded guilty to violation of a protection

order based on the September 20 events. The guilty plea was entered on October 7, 2015.

At the conclusion of the hearing, the trial judge ruled that the State had proved by a

preponderance of the evidence, shown by the testimony and exhibits, that appellant was in

violation of the terms of his SIS. After a judgment upon revocation was filed, a timely notice

of appeal followed.

Pursuant to Arkansas Code Annotated section 16-93-308(d) (Supp. 2015), a trial court

may revoke a defendant’s probation or suspension at any time prior to the expiration of the

period of probation or suspension if the court finds by a preponderance of the evidence that

the defendant has inexcusably failed to comply with a term or condition of his probation or

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suspension. The burden is on the State to prove a violation of a term or condition by a

preponderance of the evidence. Sanders v. State, 2010 Ark. App. 563. On appeal, the trial

court’s findings will be upheld unless they are clearly against the preponderance of the

evidence. Cargill v. State, 2011 Ark. App. 322. Because a determination of the preponderance

of the evidence turns heavily on questions of credibility and weight to be given to the

testimony, the appellate courts defer to the trial court’s superior position in this regard. Id.

Only one violation of the conditions of probation must be proved to support a revocation.

Robinson v. State, 2014 Ark. App. 579, 446 S.W.3d 190; see also King v. State, 2016 Ark. App.

292, __ S.W.3d __. Evidence that is insufficient for a criminal conviction may be sufficient

for a revocation proceeding because the burdens of proof are different. Short v. State, 2016

Ark. App. 335.

Here, appellant argues on appeal that the trial court’s decision is clearly erroneous

because the evidence was insufficient to find him in violation of the law with regard to his

September 20 appearance at Tracy’s house, which related to the allegations of breaking or

entering, public intoxication, and violation of an order of protection. He does not argue that

the decision is clearly erroneous as to the July 22 allegations, which were assault on a family

or household member and second-degree domestic battery. When a trial court bases its

decision on multiple, independent grounds, and an appellant challenges only one of those

grounds on appeal, we can affirm without addressing the merits of the argument. See Pugh v.

State, 351 Ark. 5, 89 S.W.3d 909 (2002); Williams v. State, 2015 Ark. App. 245, 459 S.W.3d

814; Morgan v. State, 2012 Ark. App. 357. Such is the case here. Although it is not necessary

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to address the grounds for revocation that concern the events of September 20, we hasten to

add that the trial court did not clearly err in revoking his SIS because appellant pleaded guilty

to violating the order of protection.

Appellant also asserts on appeal that the State neither entered into evidence the actual

SIS document, nor asked the trial court to take judicial notice of the original order placing

him on SIS, such that there is insufficient proof that appellant was on a term of suspension

when these alleged violations occurred. Appellant failed to raise this objection to the trial

court or obtain a ruling on it, precluding consideration of this issue on appeal. Young v. State,

370 Ark. 147, 257 S.W.3d 870 (2007). This court has held, specifically with regard to

revocation proceedings, that an argument that the State failed to introduce a copy of the terms

and conditions of a suspended sentence is a procedural objection that must be raised before

the circuit court. Myers v. State, 2014 Ark. App. 720, at 3, 451 S.W.3d 588, 590; Cotta v.

State, 2013 Ark. App. 117; Whitener v. State, 96 Ark. App. 354, 241 S.W.3d 779 (2006).

Appellant cites no authority for the proposition that the State’s failure to specifically ask the

trial court to take judicial notice of the SIS judgment already in the record constitutes a failure

of proof and equates to a sufficiency-of-the-evidence problem. Our courts do not consider

an argument when the appellant presents no citation to authority or convincing argument in

its support and it is not apparent without further research that the argument is well taken.

Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Beth’s Bail Bonds, Inc. v. State, 2016 Ark.

App. 171, 486 S.W.3d 240.

Affirmed.

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GRUBER and WHITEAKER, JJ., agree.

Aubrey L. Barr, for appellant.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., and Houston Garner, Law
Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to the
Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y Gen.,
for appellee.

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