Upshaw
v.
State

Not overruled or negatively treated on appealinfoCoverage
ARKANSAS COURT OF APPEALS DIVISION IJan 30, 2013
2013 Ark. App. 41 (Ark. Ct. App. 2013)

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No. CACR12-545

01-30-2013

CLIFFORD UPSHAW APPELLANT v. STATE OF ARKANSAS APPELLEE

Paul J. Teufel, for appellant. Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.


APPEAL FROM THE CRAIGHEAD

COUNTY CIRCUIT COURT,

WESTERN DISTRICT

[NO. CR-10-1176, CR-11-248]


HONORABLE BRENT DAVIS, JUDGE


AFFIRMED


BILL H. WALMSLEY
, Judge

Appellant Clifford Upshaw appeals from the Craighead County Circuit Court's revocation of his suspended imposition of sentence (SIS) upon finding that he violated the terms and conditions of his suspended sentences by committing commercial burglary. Upshaw raises four points on appeal: (1) the trial court erred in allowing an in-court identification because it was the result of a tainted pretrial photographic lineup, (2) the trial court erred in permitting a police officer to give expert testimony, (3) the trial court erred in allowing a door-handle comparison during the revocation hearing without any notice or discovery, and (4) there was insufficient evidence to support the revocation of his suspended sentences. We affirm.

On May 5, 2011, Upshaw pleaded guilty to robbery, second-degree criminal mischief, residential burglary, and breaking or entering. He was sentenced to three years' imprisonment on the criminal-mischief conviction and received five years' SIS on each of the other convictions on certain conditions, including that he not commit any criminal offense punishable by imprisonment. On March 23, 2012, the State filed a petition to revoke the suspended sentences, alleging that Upshaw committed commercial burglary on December 18, 2011.

At a revocation hearing, Jason Cooper testified that on December 18, 2011, he discovered that his farm shop in Jonesboro had been broken into, saw that tools had been gathered, and found Upshaw hiding behind four-wheelers in the shop. Cooper testified that Upshaw jumped to his feet and said, "I didn't steal nothing." When Cooper informed Upshaw that he was calling the police, Upshaw fled through the front door, went around to the back of the shop, and attempted to enter a black or gray vehicle. The car's door handle, however, broke and fell to the ground. Upshaw finally gained entry to the vehicle and fled the scene with Cooper in pursuit. Cooper followed him for some distance and obtained the car's license plate number. Cooper testified that he "got a good look" at Upshaw in his shop. Cooper then identified Upshaw at defense counsel's table.

According to Wayne Hamric, an employee at the Office of Motor Vehicles, the vehicle matching the license plate number provided by Cooper was registered to JuJu G. Upshaw at 227 S. Gee Street, Apartment 22. Craighead County Deputy Sheriff Rusty Grigsby went to the apartment the following morning, but Upshaw refused to open the door. Grigsby identified photographs depicting damage to the driver's side door handle of the vehicle that was parked in front of the apartment. Grigsby had found pieces of a car's door handle in back of Cooper's shop.

Gary Etter, an investigator with the Craighead County Sheriff's Department, testified that on December 20, 2011, Cooper identified Upshaw from a photographic lineup within "a few seconds." Etter testified that the men in the lineup were similar in appearance, if not in height and age.

Blanca Bernal and Antonio Ventura, friends of Upshaw, testified that Upshaw was at their home on December 18 at the time the burglary of Cooper's shop occurred. Both testified that the car Upshaw was driving remained at their home for the entire day.

JuJu Upshaw testified that her husband, the appellant, was driving her car on December 18 and had dropped her off at work around 10:30 or 11:00 a.m. JuJu identified her car from photographs that were introduced into evidence by the State without objection. According to JuJu, the driver's side door handle of her car had been damaged for a long time. JuJu testified that she did "not have a problem" with a law-enforcement officer comparing the broken handle in evidence to the damage on her car parked outside the courtroom. Grigsby participated in the door-handle comparison and testified in rebuttal that the broken door handle appeared to fit the damaged portion of JuJu's car.

Upshaw testified that he dropped his wife off at work on December 18, arrived at Ventura's house around 10:45 or 11:00 a.m., and stayed there until 4:30 to 4:45 p.m. According to Upshaw, he left the keys in the car's ignition while he worked with Ventura. Upshaw testified that he first found out that his wife's car was "involved in something out in the country" on December 19 when police knocked on his door.

At the conclusion of the hearing, the trial court found that Upshaw had violated a condition of his SIS in that he failed to lead a law-abiding life by committing commercial burglary. Upshaw was sentenced to twenty years' imprisonment on his burglary conviction, six years' imprisonment on breaking or entering, and six years' imprisonment followed by a twelve-year SIS on the robbery conviction, with those sentences running concurrently.

I. Sufficiency of the Evidence

We first address Upshaw's challenge to the sufficiency of the evidence supporting the revocation of his suspended sentences. Upshaw argues that the trial court erred in denying his "directed-verdict" motion because his alibi witnesses were more believable than Cooper.

In order to revoke a suspended sentence or probation, the trial court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of suspension or probation. Muldrew v. State, 2012 Ark. App. 568; Ark. Code Ann. § 5-4-309(d) (Supp. 2011). In revocation cases, the State has the burden of proof by a preponderance of the evidence but needs to prove only one violation; we will not reverse the trial court's decision to revoke unless it is clearly against the preponderance of the evidence. Williams v. State, 2012 Ark. App. 447. Because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial judge's superior position to decide these matters. Id. Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Jones v. State, 83 Ark. App. 186, 119 S.W.3d 48 (2003).

A person commits commercial burglary if he enters or remains unlawfully in a commercial occupiable structure of another person with the purpose of committing any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(b)(1) (Repl. 2006). Commercial burglary is a Class C felony. Ark. Code Ann. § 5-39-201(b)(2).

The trial judge specifically found that the testimony of Bernal and Ventura "[did] not carry much weight," and this court defers to the trial court's determination on credibility and weight. The trial court clearly believed Cooper's testimony. Cooper saw where Upshaw had broken into his shop, noticed that tools and equipment had been gathered, and discovered Upshaw hiding inside the shop. Cooper identified Upshaw in a photographic lineup. The vehicle that Cooper pursued was registered to Upshaw's wife, and it was undisputed that Upshaw was driving the car on December 18. Considering this evidence, we cannot say that the trial court's determination that Upshaw violated the terms of his SIS by failing to live a law-abiding life was clearly against the preponderance of the evidence. Therefore, we affirm the revocation of Upshaw's suspended sentences.

II. Identification

Upshaw argues that the trial court erred in denying his motion to suppress a photographic lineup and subsequent in-court identification because the pretrial lineup was inherently unreliable and unduly suggestive. Upshaw, however, did not object to Cooper's in-court identification of him. Our supreme court has held that a challenge to an out-of-court photographic identification is not preserved for review where, despite challenging the photographic identification prior to trial, the appellant failed to object to the victim's in-court identification. Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Failure to object to an in-court identification has the effect of waiving any issue relating to an allegedly defective photographic lineup. Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). In any event, Upshaw cannot show that the trial court clearly erred in admitting the identification evidence.

It is the appellant's burden to show that a pretrial identification was unconstitutionally suggestive. Ray v. State, 2009 Ark. 521, 357 S.W.3d 872. A pretrial identification violates the Due Process Clause when there are suggestive elements that make it all but inevitable that the victim will identify one person as the culprit. Id. Even if a photographic lineup is suggestive, the circuit court may determine that, under the totality of the circumstances, the identification was sufficiently reliable for the matter to be decided by the fact-finder. Id. In determining the reliability of pretrial identification, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Id. This court will not reverse a circuit court's ruling on the admissibility of identification evidence unless it is clearly erroneous. Id.

Cooper testified that Upshaw was approximately two feet from him when they engaged in a brief conversation in the shop; Cooper's general description of Upshaw was accurate; Etter testified that "it didn't take [Cooper] but a few seconds" to pick out Upshaw in the photographic lineup; and the lineup occurred shortly after the crime. Accordingly, even if Upshaw had preserved his argument for appeal, he did not show that the trial court clearly erred in admitting the identification evidence. We affirm on this point.

III. Expert Testimony

Upshaw argues that the trial court erred in permitting Grigsby to offer expert testimony regarding the car's broken door handle after he admitted that he was not an expert. Grigsby, however, did not testify as an expert. The trial court ruled that Grigsby could offer a lay opinion. A layperson may offer an opinion that is rationally based on his own perception and helpful to a clear understanding of his testimony or the determination of a fact in issue. See Ark. R. Evid. 701. Rule 701 is not a rule against opinions, but is a rule that conditionally favors them. Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996). Whether to admit relevant evidence rests in the sound discretion of the trial court, and the standard of review is abuse of discretion. Id. Upshaw has not shown that the trial court abused its discretion in permitting Grigsby to offer lay-opinion testimony with regard to the door-handle comparison. In any event, rules of evidence do not typically apply to revocation hearings. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001). We affirm on this point.

IV. Discovery

Upshaw contends that the trial court erred in permitting the comparison made by Grigsby because it was not disclosed during discovery pursuant to Ark. R. Crim. P. 17.1(a)(iv). Upshaw maintains that the comparison was an unfair surprise at the hearing and resulted in prejudice to him.

Rule 17.1(a)(iv) pertains to comparisons made by experts, and Grigsby was not offered as an expert. Even if a discovery violation has occurred, the reviewing court will not reverse if the error is harmless. See, e.g., Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996). Here, photographs of the car and the door handle, along with actual pieces of the broken door handle, were introduced into evidence without objection. JuJu, as registered owner of the car, consented to the comparison. Also, Upshaw raised no contemporaneous objection when the trial judge granted the State's request for the comparison following JuJu's testimony regarding the current condition of her car. Even without the door-handle comparison, the evidence was sufficient to support the revocation of Upshaw's SIS, given Cooper's eyewitness testimony that Upshaw broke into his shop and was in the process of gathering tools and equipment belonging to Cooper. In other words, even if allowing the door-handle comparison was in error, it was harmless.

Affirmed.

GLADWIN, C.J., and PITTMAN, J., agree.

Paul J. Teufel, for appellant.

Dustin McDaniel, Att'y Gen., by: Jake H. Jones, Ass't Att'y Gen., for appellee.