                                Cite as 2013 Ark. App. 442

                 ARKANSAS COURT OF APPEALS
                                         DIVISION I
                                        No. CR-13-73


MANUEL D. ORTIZ                                  Opinion Delivered August 28, 2013
                               APPELLANT
                                                 APPEAL FROM THE SEBASTIAN
V.                                               COUNTY CIRCUIT COURT,
                                                 FORT SMITH DISTRICT
                                                 [NO. CR-2012-229]
STATE OF ARKANSAS
                                 APPELLEE        HONORABLE STEPHEN TABOR,
                                                 JUDGE

                                                 AFFIRMED



                               ROBIN F. WYNNE, Judge

       Manuel D. Ortiz appeals from the revocation of his suspended imposition of sentence

(SIS), challenging the sufficiency of the evidence. We affirm.

       On April 11, 2012, Ortiz pled guilty to second-degree battery, a Class D felony. He

was sentenced to five years’ SIS, with conditions including having no contact with the

victim; paying restitution, a fine, and fees and costs; not violating any federal, state, or

municipal law; refraining from associating with persons with criminal records, bad characters,

or persons planning or encouraging the violation of any law; and not possessing or using

firearms or any controlled substance.

       On July 24, 2012, the State filed a petition to revoke appellant’s SIS, alleging:

              That on or about the 18th day of July, 2012, the Defendant committed the
       offenses of Engaging In Continuing Criminal Gang, Organization or Enterprise In the
       Second Degree, Unlawful Discharge of a Firearm from a Vehicle In the Second
       Degree, Felon In Possession of Firearm, Possession of Marijuana and Contributing to
                                Cite as 2013 Ark. App. 442

       the Delinquency of a Minor while associating with persons of bad character or who
       were engaged in criminal activity in Sebastian County, Arkansas and said charges are
       currently pending in Sebastian County Circuit Court (CR-2012-660); that said
       conduct is in violation of the terms and conditions of Defendant’s suspended
       sentence.

At the revocation hearing, the court heard the following testimony. Bridgett Rangel testified

that she owned a clothing store at 1319 Greenwood Avenue and lived with her five-year-old

daughter in an apartment above the store. On July 18, 2012, when she was getting ready to

put her daughter to sleep, she heard a noise that she thought at first was fireworks but later

realized was gunshots. She went to the window and saw a dark blue car that she recognized

as appellant’s making a left turn onto L Street “real fast.” Rangel testified that she went

downstairs to find the glass door to her shop shattered. Her brother, who lived next door

and had had problems with appellant in the past, said, “Yeah, it was Tiny [appellant].” She

testified that she believed she saw appellant driving the vehicle as it turned onto L, and she

knew that appellant and other members of the SSL (South Side Locos) gang did not like her

brother. In fact, she had seen appellant drive past earlier in the day and had been involved

in an altercation between her brother and appellant and his gang about a month before this

incident.

       Several officers of the Fort Smith Police Department also testified. Roger Gordon

testified that he responded to the call at 1319 Greenwood at about 10:15 p.m. While he was

interviewing the victim, appellant’s vehicle drove by going north on Greenwood. The car

was stopped, and officers made contact with appellant, who was driving, and two passengers.

In the search incident to arrest, the officers found a loaded .380 handgun and approximately

fifteen grams of marijuana underneath the rear seat. Officer Billy Hardin testified that he


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searched appellant’s vehicle and in the front passenger seat found a black glove containing

four .380-caliber cartridges. In investigating the crime scene, Officer Hardin found a shell

casing and two bullet fragments in the road; both the ammunition and the empty casing were

Winchester brand and the same caliber. In addition, Officer Hardin testified that he obtained

a search warrant for appellant’s phone and discovered a photograph of appellant’s hand,

identifiable by a tattoo on his index finger, holding a handgun.

       At the conclusion of the hearing, the circuit court revoked appellant’s SIS and

sentenced him to six years in the Arkansas Department of Correction. On appeal, Ortiz

claims that the circuit court erred in revoking his suspended imposition of sentence because

the State failed to produce sufficient evidence to support the revocation petition.

       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 expiration of the period of suspension. Ark. Code Ann. § 16-93-

308(d) (Supp. 2011). The State bears the burden of proof, but need only prove that the

defendant committed one violation of the conditions. Haley v. State, 96 Ark. App. 256, 258,

240 S.W.3d 615, 617 (2006). When appealing a revocation, the appellant has the burden of

showing that the trial court’s findings are clearly against the preponderance of the evidence.

Id. Evidence that is insufficient for a criminal conviction may be sufficient for the revocation

of probation or suspended sentence. Id. Since the determination of a preponderance of the

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

the trial judge’s superior position. Id.




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       Under these standards, there was sufficient evidence to support the finding that Ortiz

violated the conditions of his SIS. The State presented evidence that the glass door of

Bridgett Rangel’s store front was shot out in a drive-by shooting; that she recognized

appellant’s car driving away from the scene; and that appellant was stopped a short time later

with marijuana, a loaded gun, and ammunition matching the brand and caliber used in the

shooting found in his vehicle. A search of appellant’s phone revealed photos of appellant

holding the gun. On this record, we hold that there was sufficient evidence for the trial

court to find that appellant violated the conditions of his SIS.

       Affirmed.

       PITTMAN and GRUBER , JJ., agree.

       Daniel W. Marvin, for appellant.

       Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.




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