Ta v. State

Cite as 2015 Ark. App. 220ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-838
STEVEN VAN TA Opinion Delivered April 8, 2015
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT
[NO. CR-2012-405]
STATE OF ARKANSAS
APPELLEE HONORABLE JAMES O. COX,
JUDGE
AFFIRMED
BART F. VIRDEN, Judge
On September 9, 2014, the Sebastian County Circuit Court revoked appellant Steven
Van Ta’s suspended sentences and sentenced him to serve six years’ imprisonment followed
by a ten-year suspended imposition of sentence (SIS). Ta’s only argument on appeal is that
there was insufficient evidence to revoke his suspended sentences. We disagree and affirm
the revocation.
I. Procedural History
In May 2012, Ta pleaded guilty to four charges: conspiracy to possess roxicodone with
purpose to deliver, for which he received a ten-year SIS; possession of drug paraphernalia,
for which he received a six-year SIS; possession of a Schedule VI controlled substance, for
which he received a one-year SIS; and refusal to submit to arrest, for which he received a
ninety-day SIS. Ta was given terms and conditions of his suspended sentences, which
Cite as 2015 Ark. App. 220provided, among other things, that he not violate any laws and that he pay a fine, costs, and
fees.
The State filed a petition to revoke in July 2014, alleging that Ta had violated the
terms and conditions of his suspended sentences by committing aggravated assault on a family
or household member and terroristic threatening and by failing to pay his fine, costs, and fees.
II. Revocation Hearing
At the revocation hearing, the State entered a ledger into evidence, with no objection
by defense counsel, reflecting an outstanding balance on Ta’s fine, costs, and fees of $1,156.
Vankham Sisouphanh testified that Ta was her live-in boyfriend of several months
when, on July 4, 2014, he “flipped out,” pulled her off of the couch, and dragged her to the
kitchen where he straddled her and told her that if she ever left him, he would kill her.
Sisouphanh testified that Ta grabbed a knife and that, when she told him she needed to pick
up her children, he said she “might not make it.” Sisouphanh nevertheless insisted that Ta
had never done anything like that before and that she was not afraid of him.
Dwight Roam, a patrolman with the Fort Smith Police Department, responded to a
disturbance call at Sisouphanh’s residence. There was testimony that Sisouphanh had gone
to her cousin’s residence and that the cousin had called the police. Because Sisouphanh was
not at her residence, the police left; however, the officers were called back to the residence
later that night. Roam testified that Sisouphanh claimed that Ta had become irate for no
reason. According to Sisouphanh, Ta had pinned her down on the kitchen floor and began
stabbing a knife into the floor beside her head until the tip broke. Roam saw what looked
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Cite as 2015 Ark. App. 220like stab holes in the linoleum. Also, Roam observed a knife on the kitchen counter that was
missing its tip. Roam testified that Sisouphanh appeared fearful and was adamant that she did
not want Ta at the residence. Sisouphanh told him that Ta had a history of violence in that
he had punched holes in the walls and had stabbed the walls with a screwdriver.
The trial court found that Ta committed first-degree terroristic threatening by stating
that he would kill the victim if she left him. The trial court was “uncertain” whether the
State could prove aggravated assault on a family or household member but concluded that
the evidence proved, at minimum, third-degree assault on a family or household member.
With regard to Ta’s fine, the trial court found that the State had proved there was an
outstanding balance and noted that it was Ta’s burden to show some reason for failing to pay
what he owed. The trial court noted that Ta looked like “a healthy young fellow” who
could work, yet it had been almost two years since Ta had paid anything.
III. Standard of Review
If a court finds by a preponderance of the evidence that the defendant has inexcusably
failed to comply with a condition of his suspension, the court may revoke the suspension at
any time prior to the time it expires. Ark. Code Ann. § 16-93-308(d) (Supp. 2013). Evidence
that is insufficient for a criminal conviction may be sufficient for the revocation of a
suspended sentence. Sherril v. State, 2014 Ark. App. 411, 439 S.W.3d 76. The State bears the
burden of proof, but need only prove that the defendant committed one violation of the
conditions. Id. On appeal, the trial court’s decision will not be reversed unless it is clearly
against the preponderance of the evidence. Id. Because the determination of a preponderance
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Cite as 2015 Ark. App. 220of the evidence turns on questions of credibility and weight to be given testimony, we defer
to the trial court’s superior position. Id.IV. Sufficiency of the Evidence
A. First-Degree Terroristic Threatening
A person commits the offense of first-degree terroristic threatening if, with the
purpose of terrorizing another person, he threatens to cause death or serious physical injury
to another person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Supp. 2013). A person acts
purposely with respect to his conduct or a result thereof when it is his conscious object to
engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-2-202(1) (Supp.
2013). Evidence that it was a person’s conscious object to cause a person fright constitutes
proof that the defendant acted with the purpose of terrorizing the person. Cauffiel v. State,
2013 Ark. App. 642.
Ta contends that it is clear he did not act with the purpose of terrorizing Sisouphanh
given her hesitation to testify,1 her account of the events—she was confused and did not
know what had really happened, and her testimony that his actions were uncharacteristic. Ta
asserts that Sisouphanh “seemed to take as a threat” his statement that she might not make
it to get her kids.
Sisouphanh’s actions are not determinative of whether Ta acted with the purpose of
terrorizing her. The trial court could reasonably conclude that pinning Sisouphanh down and
1
The initial hearing was continued because Sisouphanh, a subpoenaed witness, refused
to testify and was held in contempt of court.
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Cite as 2015 Ark. App. 220stabbing a knife into the floor around her head is purposeful conduct and that the purpose
could not be anything other than evoking fear of death or serious physical injury. Moreover,
Ta’s statement that he would kill Sisouphanh if she left him was an unequivocal death threat.
Considering Ta’s conduct in conjunction with his words, we cannot say that the trial court’s
finding that Ta committed first-degree terroristic threatening was clearly against the
preponderance of the evidence. Although this one violation is sufficient to support the
revocation, Sherril, supra, we will briefly discuss Ta’s other points.
B. Aggravated Assault on a Family or Household Member
According to Ta, Sisouphanh could not have felt there was substantial danger of death
or serious physical injury, or else she would not have returned to the residence alone and she
would not have asked only that he be escorted from the residence.2
Here, the trial court found that Ta had committed the lesser-included offense of third-
degree assault on a family or household member by a preponderance of the evidence.3 See,
e.g., Wooten v. State, 32 Ark. App. 198, 799 S.W.2d 560 (1990) (modifying aggravated-assault
conviction to lesser-included offense of third-degree assault). Ta does not challenge the trial
court’s finding that he committed third-degree assault on a family or household member.
2
A person commits aggravated assault on a family or household member if, under
circumstances manifesting extreme indifference to the value of human life, the person
purposely engages in conduct that creates a substantial danger of death or serious physical
injury. Ark. Code Ann. § 5-26-306(a)(1) (Supp. 2013).
3
A person commits third-degree assault on a family or household member if the
person purposely creates apprehension of imminent physical injury. Ark. Code Ann. § 5-26-
309(a) (Supp. 2013).
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Cite as 2015 Ark. App. 220This court will affirm a revocation where the appellant fails to challenge the trial court’s
independent, alternative basis for revocation. See, e.g., Bedford v. State, 2014 Ark. App. 239.
C. Failure to Pay the Fine, Costs, and Fees
Ta maintains that the State failed to present any evidence that he willfully failed to
make payments on the fine, costs, and fees. Where the alleged violation involves the failure
to pay ordered amounts, after the State has introduced evidence of nonpayment, the burden
shifts to the probationer to provide a reasonable excuse for the failure to pay. Peals v. State,
2015 Ark. App. 1, ___ S.W.3d ___. It is the probationer’s obligation to justify his failure to
pay, and this shifting of the burden of production provides an opportunity to explain the
reasons for nonpayment. Id. Because Ta failed to offer any reasonable explanation for his
failure to pay, the trial court’s conclusion that his failure to pay was inexcusable was not
clearly against the preponderance of the evidence.
Affirmed.
HARRISON and HIXSON , JJ., agree.
Aubrey L. Barr, for appellant.
Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.
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