Peel v. State

Cite as 2015 Ark. App. 226ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-14-837
Opinion Delivered APRIL 8, 2015
APPEAL FROM THE CRAIGHEAD
KEITH A. PEEL COUNTY CIRCUIT COURT,
APPELLANT WESTERN DISTRICT
[NO. CR-11-1080]
V.
HONORABLE BRENT DAVIS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
KENNETH S. HIXSON, Judge
Appellant Keith Peel was convicted of robbery and placed on five years’ probation.
Mr. Peel’s probation was subsequently revoked within the five-year period based on the trial
court’s findings that he violated his conditions by failing to pay fines and costs, and by
committing theft and fraudulent use of a debit card. Upon revocation, Mr. Peel was
sentenced to four years in prison followed by a sixteen-year suspended imposition of sentence.
In this appeal, Mr. Peel argues that the trial court’s decision to revoke his probation
was clearly against the preponderance of the evidence. We disagree, and we affirm.
Pursuant to Arkansas Code Annotated section 16-93-308(d) (Supp. 2013), the burden
upon the State in a revocation proceeding is to prove by a preponderance of the evidence that
the defendant inexcusably failed to comply with at least one condition of the probation. We
will not reverse unless the trial court’s findings are clearly against the preponderance of the
Cite as 2015 Ark. App. 226evidence, and we defer to the credibility determinations made by the trial court. Alexander
v. State, 2014 Ark. App. 40.
The conditions of Mr. Peel’s probation required him to pay $1256 in fines and costs
at a rate of $50 per month beginning in February 2013. At the revocation hearing held
in May 2014, Mr. Peel admitted that he had made no payments toward his fines and costs.
Mr. Peel indicated that his failure to make any payments was due to his paying fines and fees
in a different criminal proceeding. However, Mr. Peel acknowledged that he worked thirty
to forty hours per week making $7.00 an hour and that he received a $700 monthly disability
check. Mr. Peel also stated that he could not give a logical excuse or reason as to why he had
not paid yet, and he said he would “start my first payment this Friday if you don’t lock me
up.”
Mr. Peel’s probation also prohibited him from committing an offense punishable by
imprisonment. The State elicited testimony from Daniel Coggins, a former coworker and
friend of appellant’s, who stated that one evening while they worked together Mr. Peel left
the premises and did not return. Mr. Coggins later discovered that his debit card was missing,
and when he went to the bank he discovered that his account was overdrawn due to $276 in
unauthorized charges. All of these charges were made while Mr. Coggins had been working
that night after appellant had left.
Mr. Coggins reported the debit card stolen, and Mr. Peel later returned the card to the
apartment manager where Mr. Coggins lived. Mr. Coggins testified that he never gave
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Cite as 2015 Ark. App. 226Mr. Peel permission to use his debit card, nor did he give him the PIN. Mr. Coggins stated
that many times in the past he had used his debit card while Mr. Peel stood near him.
Mr. Peel acknowledged in his testimony that he had made transactions using
Mr. Coggins’s debit card. However, he denied stealing the card or using it fraudulently.
Mr. Peel testified that Mr. Coggins owed him $200 for drugs and that, because Mr. Coggins
had no cash, Mr. Coggins gave him his debit card and his PIN. According to Mr. Peel,
Mr. Coggins authorized him to use the debit card as repayment of the debt.
On appeal, Mr. Peel argues that there was insufficient evidence to support the trial
court’s findings that he violated his probation conditions. Although there was proof that he
was delinquent in paying his fines and fees, Mr. Peel asserts that he provided a reasonable
excuse given that he was applying his income to outstanding fines and fees in another court.
As for the allegation that he committed theft and fraudulent use of a debit card, Mr. Peel
contends that he gave a plausible explanation for his legitimate use of the card with
Mr. Coggins’s permission. For these reasons, Mr. Peel requests that his revocation be
reversed.
The State need only prove one violation in order to support a revocation. Phillips v.
State, 2011 Ark. App. 613. However, in this case we hold that the trial court’s findings with
respect to both of the violations were not clearly against the preponderance of the evidence.
We stated in Alls v. State, 2013 Ark. App. 713, that once the State introduces evidence
of nonpayment, the defendant then has the burden of going forward with some reasonable
excuse for his failure to pay as ordered. In this case there was proof that Mr. Peel had paid
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Cite as 2015 Ark. App. 226nothing toward his court-ordered fines and costs, despite being employed and receiving
disability income. Mr. Peel acknowledged in his testimony that he had no logical excuse for
failing to pay, and he indicated that he had the ability to make a payment if the court would
not put him in jail. On these facts, the trial court did not err in finding that Mr. Peel’s failure
to pay was inexcusable.
We further hold that there was no error in the trial court’s determination that Mr. Peel
fraudulently used Mr. Coggins’s debit card. Although Mr. Peel testified that his use of the
card was by permission, the trial court was not required to believe his testimony as he was
the person most interested in the outcome of the proceedings. See Rhoades v. State, 2010
Ark. App. 730, 379 S.W.3d 659. In direct contrast to appellant’s testimony, the victim
unequivocally testified that he never allowed Mr. Peel to use his debit card and that the
charges were unauthorized. Leaving credibility decisions to the trial court, as we must, the
trial court’s finding that Mr. Peel violated his conditions by committing additional criminal
offenses was not clearly against the preponderance of the evidence.
Affirmed.
VIRDEN and HARRISON, JJ., agree.
Terry Goodwin Jones, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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