Kidwell v. State

Cite as 2017 Ark. App. 4

ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-16-548

Opinion Delivered: January 18, 2017
THOMAS KIDWELL
APPELLANT
APPEAL FROM THE POLK
V. COUNTY CIRCUIT COURT
[NO. 57CR-14-112]
STATE OF ARKANSAS
APPELLEE
HONORABLE JERRY RYAN,
JUDGE

AFFIRMED

BART F. VIRDEN, Judge

In January 2015, appellant Thomas Kidwell pleaded guilty to theft of property and

received six years’ probation subject to various terms and conditions. The State filed a

petition to revoke based on several violations of those terms and conditions. Following a

hearing, the Polk County Circuit Court revoked Kidwell’s probation and sentenced him to

serve six years in prison. On appeal, Kidwell asserts that the trial court erred in revoking his

probation. We affirm.

I. Revocation Hearing

The State alleged in its petition that Kidwell had failed to pay fines, costs, and

restitution; failed to report as directed; failed to permit an officer to visit his home or place

of employment; failed to obtain permission before changing his residence; failed to refrain

from using controlled substances; and failed to refrain from using alcohol. At the revocation

hearing, Brittany Quinn, Kidwell’s probation officer, testified that the terms and conditions
Cite as 2017 Ark. App. 4

of Kidwell’s probation had been explained to him and that he had appeared to understand

them.

Quinn further testified that Kidwell had failed to make any payments on his fines,

costs, and restitution; however, she acknowledged that he was disabled and that payment of

supervision fees had been waived. Quinn testified that Kidwell was instructed to report on

Tuesdays and Thursdays for group sessions and to call in for “Color of the Day.” She listed

several dates on which Kidwell had failed to report as directed. She testified that Kidwell

had reported on March 8, 2016—after the State had filed its petition—and was arrested.

Quinn further testified that she had been unable to locate Kidwell at the only address he

had provided and that she did not know where Kidwell currently lived. Quinn conceded

that Kidwell could have lived at the address provided and had simply not been there on the

two times she had attempted to visit. Quinn further stated that Kidwell had tested positive

for oxycodone and opiates on “multiple” occasions and that he had tested positive for

alcohol. She said that, if Kidwell’s disability had resulted in back pain, his positive drug tests

could be explained, but she noted that the positive tests would be excused only if he had a

prescription for those drugs.

At the conclusion of the hearing, the trial court found that Kidwell had “violated

more than one of [the conditions] even if you cut him some slack on a couple of things.”

II. 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 probation, the court may revoke the probation at

any time prior to the expiration of the period of probation. Ark. Code Ann. § 16-93-308(d)

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(Repl. 2016). The State need only prove one violation of the terms and conditions of

probation to sustain a revocation. Clark v. State, 2016 Ark. App. 383. On appeal, the trial

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

evidence. King v. State, 2016 Ark. App. 292, 494 S.W.3d 463. 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.

III. Arguments

Kidwell argues that the trial court erred in determining that he had inexcusably

violated a condition of his probation. He states that his failure to pay fines, costs, and

restitution should be excused because he was on disability and because supervision fees had

been waived. He contends that reporting for group sessions and calling in for “Color of the

Day” were not mentioned in the conditions of his probation. He asserts that it was possible

that he had lived the entire time at the address he had provided. Finally, he argues that the

failed drug tests could have resulted from his use of medication for back pain.

IV. Discussion

While reporting for group sessions and calling in for “Color of the Day” were not

specifically mentioned in the terms and conditions of Kidwell’s probation, he was told to

“report to the probation office on a regular schedule or at any time as directed by the

probation officer.” Quinn’s testimony established that Kidwell had failed to report as

directed. Also, even if Kidwell had tested positive for controlled substances due to prescribed

pain medication, that does not explain why he also tested positive for alcohol. One of the

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conditions was that he “refrain from the use or possession of any alcoholic beverage,

including beer, wine, and liquors.”

Only one violation was necessary, and either of the violations discussed above was

sufficient to uphold the revocation of Kidwell’s probation. We need not address the other

alleged violations. See King, supra; Jefferson v. State, 2015 Ark. App. 509, 470 S.W.3d 687.

We thus hold that the trial court’s decision to revoke Kidwell’s probation was not clearly

against a preponderance of the evidence.

Affirmed.

GRUBER, C.J., and HIXSON, J., agree.

Brian Johnson, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee

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