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ARKANSAS COURT OF APPEALS DIVISION I No. CR-13-94

Opinion Delivered MAY 14, 2014

APPEAL FROM THE SEBASTIAN JEREMY LEON STOCKTON COUNTY CIRCUIT COURT, APPELLANT FORT SMITH AND GREENWOOD DISTRICTS V. [NOS. CR-1997-768, G-CR-2000-45, CR-2000-587, CR-2004-959] STATE OF ARKANSAS APPELLEE HONORABLE STEPHEN TABOR, JUDGE

AFFIRMED; MOTION TO WITHDRAW GRANTED

BILL H. WALMSLEY, Judge

Appellant Jeremy Stockton appeals from the revocation of his suspended imposition

of sentence (SIS) on five convictions. Pursuant to Anders v. California,

(1967),

and Arkansas Supreme Court Rule 4-3(k)(1) (2013), appellant’s counsel has filed a no-merit

brief and a motion to withdraw alleging that there are no non-frivolous arguments that would

support an appeal.1 The clerk of this court attempted to notify appellant of his right to file

pro se points for reversal; however, the certified packet sent to appellant’s last known address

in the Arkansas Department of Correction was returned with a note that stated “paroled.”

1 We previously ordered rebriefing in this matter due to counsel’s failure to include necessary documents in the addendum and failure to address all adverse rulings. Stockton v. State,

. These deficiencies have now been corrected. Cite as

Appellant’s counsel has no additional contact information, and appellant has not filed pro se

points. We affirm the revocations and grant the motion to withdraw.

On November 5, 2012, the trial court entered an order revoking appellant’s SIS for

the following convictions: theft by deception in CR-1997-768, theft by receiving in

G-CR-2000-45, second-degree forgery in CR-2000-587, residential burglary in

CR-2004-959, and theft of property in CR-2004-959. The trial court found that the State

had proved by a preponderance of the evidence that appellant inexcusably violated conditions

of his suspension by failing to pay restitution and committing sexual assault in the fourth

degree. Appellant timely appealed.

A request to withdraw on the ground that the appeal is wholly without merit shall be

accompanied by a brief including an abstract and addendum. Ark. Sup. Ct. R. 4-3(k)(1).

The brief shall contain an argument section that consists of a list of all rulings adverse to the

defendant made by the circuit court with an explanation as to why each adverse ruling is not

a meritorious ground for reversal. Ark. Sup. Ct. R. 4-3(k)(1). In furtherance of the goal of

protecting constitutional rights, it is both the duty of counsel and of this court to perform a

full examination of the proceedings as a whole to decide if an appeal would be wholly

frivolous. Coleman v. State,

.

The first adverse ruling was the trial court’s determination that it had jurisdiction to

revoke appellant’s SIS on his convictions for theft by deception, theft by receiving, and

second-degree forgery despite the fact that the periods of suspension had expired. As counsel

notes, if the court suspended imposition of sentence or placed a defendant on probation

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conditioned upon his making restitution, and the defendant has not satisfactorily made all of

his payments when the probation period has ended, the court may continue to assert

jurisdiction over the recalcitrant defendant and either extend the probation period as the court

deems necessary or revoke the defendant’s suspended sentence.

(Supp. 2013). There was no dispute that appellant still owed restitution in these cases. Thus,

we agree with counsel that there is no meritorious ground for appeal based on this ruling.

Counsel next addresses the sufficiency of the evidence supporting the revocation

decision. To revoke probation, the burden is on the State to prove the violation of a

condition of the probation by a preponderance of the evidence. Boykins v. State,

. On appellate review, the trial court’s findings are upheld unless they are clearly

against the preponderance of the evidence.

Since the determination of the preponderance

of the evidence turns on questions of credibility and the weight to be given testimony, we

defer to the trial court’s superior position.

At the revocation hearing, K.W. described an incident in January 2012 involving

appellant, her stepfather’s nephew. K.W. testified that as they were sitting in a car, appellant

kissed her, rubbed her breasts, and touched her “private parts” between her legs despite her

requests for him to stop. K.W. was fifteen years old at the time, and appellant was thirty-five.

As counsel notes, the trial court found K.W. credible, and the uncorroborated testimony of

the victim alone may be sufficient to sustain a conviction for sexual assault. Boykins, supra.

Pursuant to Arkansas Code Annotated section 5-14-127(a)(1)(B) (Repl. 2013), a person

commits sexual assault in the fourth degree if the person being twenty years of age or older

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engages in sexual contact with another person who is less than sixteen years of age and not

the person’s spouse. “Sexual contact” means any act of sexual gratification involving the

touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the

breast of a female.

(10) (Repl. 2013). K.W.’s testimony

established the elements for fourth-degree sexual assault, and no issue of arguable merit could

be raised on appeal to reverse this finding.

Lastly, counsel addresses two adverse evidentiary rulings made upon the State’s

objections to defense counsel’s questions. The trial court sustained the State’s objection to

counsel asking K.W. whether she had ever made another report of sexual assault. The trial

court also sustained an objection to counsel asking appellant’s mother whether it was in

appellant’s nature to touch a young lady in an inappropriate way. Counsel correctly notes that

the rules of evidence do not apply in revocation proceedings. Ark. R. Evid. 1101 (2013).

Furthermore, a trial court has broad discretion in evidentiary rulings. Jones v. State,

,

. We agree that these rulings provide no possible grounds for

reversal.

Based on our review of the record and the brief presented to this court, we conclude

that there has been full compliance with Rule 4-3(k) and that the appeal is wholly without

merit. Accordingly, we affirm the revocations and grant counsel’s motion to withdraw.

Affirmed; motion to withdraw granted.

WOOD and BROWN, JJ., agree.

Evan C. Bell, for appellant.

No response. 4