Mosley v. State
499 S.W.3d 226
Ark. Ct. App.
2016
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James MOSLEY, Jr., Appellant v. STATE of Arkansas, Appellee

No. CR-15-831

Court of Appeals of Arkansas, DIVISION III.

August 24, 2016

2016 Ark. App. 353

. Accordingly, we affirm the trial court‘s contempt finding without further discussion.

Harry‘s second point on appeal is that the trial court erred in awarding Rebekah alimony based on his military disability benefits. The September 2014 judgment awarded Rebekah $590.14 per month in alimony retroactive to April 2013. This award was an increase from the amount of alimony originally ordered by the trial court, and the trial court‘s decision to increase Rebekah‘s alimony accounted for Harry‘s decrease in retirement benefits and increase in disability benefits.

The decision to grant alimony lies within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. . The purpose of alimony is to rectify the economic imbalance in the earning power and standard of living of the divorcing parties in light of the particular facts of each case. . The primary factors to consider are the financial need of one spouse and the other spouse‘s ability to pay. Other factors include the financial circumstances of both parties; the couple‘s past standard of living; the value of jointly owned property; the amount and nature of the income, both current and anticipated, of both parties; the extent and nature of the resources and assets of each party; the amount of each party‘s spendable income; the earning ability and capacity of both parties; the disposition of the homestead or jointly owned property; the condition of health and medical needs of the parties; and the duration of the marriage.

The evidence before the trial court establishes that the parties had a nearly twenty-two year marriage. It also clearly reflected income disparity between the parties. According to their affidavits of financial means, Harry had $5,162.08 per month in income, and Rebekah had $1,190.75 per month in income. The trial court originally contemplated that, in addition to her alimony payments, Rebekah would be receiving a portion of Harry‘s retirement payments. These retirement payments did not come to fruition when he was declared disabled, and the court took into account his disability benefits when it increased Harry‘s alimony payments to Rebekah. Our law is clear that a court may consider disability income as a basis for determining alimony. . Based on the disparity in income and the length of the parties’ marriage, we cannot say that the trial court abused its discretion in its alimony award.

Affirmed.

HOOFMAN and BROWN, JJ., agree.

Bryan Donaldson, for appellant.

Leslie Rutledge, Att‘y Gen., by: Brad Newman, Ass‘t Att‘y Gen., Little Rock, for appellee.

RITA W. GRUBER, Judge

On February 3, 2006, James Mosley, Jr., pleaded guilty to two counts of possessing a controlled substance with intent to deliver; he was sentenced to 216 months’ imprisonment on the first count and 120 months’ suspended imposition of sentence on the second count. The conditions of his suspension included a requirement that he “live a law-abiding life, be of good behavior, and not violate any state, federal, or municipal law.” On December 30, 2014—after he was released on parole—the State filed a petition to revoke suspension, alleging in part that he had violated its conditions by committing kidnapping, aggravated assault, possession of firearm by a felon, and third-degree battery. At the conclusion of a revocation hearing, the court granted the petition to revoke and sentenced Mosley to 144 months in the Arkansas Department of Correction. He timely appeals the resultant sentencing order entered on June 16, 2016.

Mosley contends that the circuit court erred in finding that he violated terms of his suspension. He argues that the court failed to specify which criminal acts were proven and that the State failed to offer sufficient proof of the presence of physical injury, an element of third-degree battery. The State responds that the record belies Mosley‘s claim regarding the circuit court‘s failure to specify which criminal acts were proven and that, as the court specifically found, the State proved by a preponderance of the evidence that crimes had been committed. The State asserts that any degree of assault, battery, false imprisonment, or possession of a firearm by a felon was a sufficient basis for revocation. We affirm.

In order to revoke a probation or a suspended imposition of sentence, the circuit court must find by a preponderance of the evidence that the defendant has inexcusably violated a condition of the probation or suspension. Ark. Code Ann. § 16-93-308(d) (Supp. 2015). Thus, to sustain a revocation, the State need show only that the defendant committed one violation. .

Evidence that may not be sufficient to convict can be sufficient to revoke due to the lower burden of proof required for revocation. . A circuit court‘s finding in revocation proceedings will not be reversed on appeal unless it is clearly against the preponderance of the evidence. Because the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the superior position of the trial court to decide these matters. . An appellant need not move for dismissal in a revocation proceeding in order to challenge the sufficiency of the evidence on appeal. .

Teenagers Atwann Stinnett and Carrell White testified that on December 16, 2014, they were met outside a house by a man and were brought inside, where they were held while Mosley—armed with a silver and black automatic gun—asked who was responsible for a burglary of his “stuff.” They testified that Mosley hit, slapped, and kicked Stinnett until he agreed to lead Mosley to the person responsible; that the two of them were in the house about an hour and a half; and that, without being released and while en route to another location, they escaped. Stinnett testified that his face was bruised and scratched by Mosley, who threatened that he or one of his “home boys” would take Stinnett to the country and kill him. Mosley testified in his own defense; he denied holding Stinnett and White in the house, having a gun, threatening to kill or batter Stinnett, or doing anything more than talk to them about the missing $3000 and televisions.

The circuit court, stating that the case came down to credibility, found that the teenagers testified fairly consistently about what had happened and that nothing suggested a reason for them to lie. Noting testimony “that the gun was being waved at the same time there were threats” and that Mosley threatened to take Stinnett out and kill him, the court discounted Mosley‘s own testimony that he simply talked to Stinnett and White and that they came and left voluntarily. It found by the preponderance of evidence “that these two young men were falsely imprisoned at the very least, that there was an assault upon them, that Mr. Mosley was in possession of a firearm as a [felon], and that he did commit battery in the third degree.” On this basis, the court granted the petition to revoke.

A person commits assault in the third degree if he or she purposefully creates apprehension of imminent physical injury in another person. Ark. Code Ann. § 5-13-207 (Repl. 2013). An individual commits battery in the third degree when, with the purpose of causing physical injury to another person, the individual causes physical harm to any person. Ark. Code Ann. § 5-13-203(a)(1). A person commits false imprisonment in the second degree if without consent and lawful authority, the person knowingly restrains another person so as to interfere substantially with the other person‘s liberty. Ark. Code Ann. § 5-11-104(a). Additionally, it is unlawful for an individual convicted of a felony to possess a firearm under Ark. Code Ann. § 5-73-103(a)(1) (Repl. 2016). See also (stating that “although evidence may be insufficient in a probation-revocation proceeding to sustain an allegation that appellant committed a specific offense, revocation will be sustained if the evidence establishes a lesser-included offense“).

Here, the conditions of Mosley‘s suspension required that he not violate any laws. We cannot say that the circuit court clearly erred in finding by a preponderance of the evidence that Mosley committed the crimes of false imprisonment, assault, possession of a firearm as a felon, and battery in the third degree. Thus, we affirm the revocation of his suspension.

Affirmed.

Abramson and Virden, JJ., agree.

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