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2013 Ark. App. 446
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-121
Opinion Delivered August 28, 2013
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
MICHAEL H. COUPEY FORT SMITH DISTRICT
APPELLANT [NO. CR-2011-1068]
V. HONORABLE STEPHEN TABOR
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
DAVID M. GLOVER, Judge
Michael Coupey appeals from the revocation of his suspended sentence for the
underlying offense of aggravated assault. He challenges the sufficiency of the evidence
supporting the trial court’s finding that he violated the terms of his suspended sentence by
committing the offense of first-degree terroristic threatening, and further contends that his
confrontation-clause rights were violated. We affirm.
Coupey pled guilty to two offenses in November 2011—aggravated assault and
domestic battery. The victim of both offenses was his girlfriend at the time, Shelly
Wilkinson. He was sentenced to six months in the county detention center on the
domestic-battery charge, which he completed. With respect to the aggravated-assault
charge, he received a seventy-two-month suspended sentence. Part of his sentence also
Cite as 2013 Ark. App. 446
included payment of restitution in the amount of $922.01, to be paid in $55 monthly
installments after his release from the detention center, and a public-defender fee in the
amount of $100. He was ordered to have no contact with Wilkinson. The terms and
conditions of his suspended sentence included the requirement that he not violate any
federal, state, or municipal laws.
Coupey was charged with first-degree terroristic threatening on August 6, 2012.
This charge was based on Michael Dishno’s allegation that Coupey threatened him over
the telephone. Dishno was Shelly Wilkinson’s new boyfriend. The State subsequently
filed a petition to revoke Coupey’s suspended sentence on November 28, 2012. The
petition alleged violations of the terms and conditions of the suspended sentence by
committing the terroristic-threatening offense and by failing to pay the ordered restitution
and fees. The revocation hearing was held on January 9, 2013. The State presented the
testimony of Dishno and Officer Clyde Forrest, the Fort Smith police officer who
responded to Dishno’s call about Coupey’s threatening telephone call.
Dishno testified that on June 7, 2012, he, Shelly, and Brandy Munn were in a
bedroom at his residence when they “heard something at the window.” Dishno stated
that he ran outside and received a call on his cell phone from Coupey. He said that
Coupey told him he was going to cut his throat with the same knife he had used to cut his
window screen. Dishno stated that he did not see any damage to his screen but that it was
loose and he was scared. He explained that he called the police. He said that Coupey
called back while Officer Forrest was at his house and that he put Coupey on speaker
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phone so the officer could hear what Coupey said. He acknowledged that Coupey did
not make any threats during that call.
Officer Forrest testified that he received a call from Dishno stating that Coupey had
threatened him and had cut his screen. The officer explained that he looked at the
window screen, that it was slightly out of its frame, and that it was not cut. He said that
Dishno told him Coupey had threatened to cut his throat.
The officer testified that he talked to two women while he was at Dishno’s
residence. Defense counsel objected regarding anything the women said based on the
confrontation clause. The objection was overruled, and Forrest testified that he spoke
with Shelly Wilkinson and Brandy Munn and that they “told [him] the same story.”
Forrest recounted that Coupey made two calls to Dishno while Forrest was at the
residence; that he (Forrest) told Dishno to ignore one and that the second call was put on
speaker phone. He remembered something being said about Shelly’s birthday and that it
sounded like Coupey was joking and trying to get a rise out of Dishno.
At the close of the hearing, the trial court dismissed the failure-to-pay portion of
the petition to revoke, concluding that Coupey had made seven payments in a six-month
period. However, the trial court further concluded that Coupey had violated the terms of
his suspended sentence by committing the offense of terroristic threatening in the first
degree, explaining:
There were things that concerned me, and I understand your point about
Mr. Dishno’s testimony. There were issues about him not remembering signing
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the statement. His testimony was given some credibility when the Defendant
continued to call after the officer arrived. Defendant spent six months in jail, and
four months after he got out he is making these phone calls, at least trying to
convey messages to Shelly, who was his previous victim and who he had been
ordered by the Court to refrain from contacting. It concerns me that he has
disregarded orders from the Court. The non-payment part of the petition to
revoke is dismissed. He made seven payments in a six-month period. However, I
find that Mr. Coupey violated terms of his suspended sentence by committing the
offense of terroristic threatening in the first degree.
The trial court sentenced Coupey to eighteen months in the Arkansas Department of
Correction, with an additional four years suspended conditioned upon Coupey having no
contact with either Shelly or Dishno. This appeal followed.
To prevail on a petition to revoke, the State must prove by a preponderance of the
evidence that the defendant inexcusably violated at least one condition of his probation.
Ark. Code Ann. § 16-93-308(d) (Supp. 2011); Hill v. State,
2012 Ark. App. 493. We will
reverse an order of revocation only if the trial court’s findings are clearly against the
preponderance of the evidence, and we defer to the trial court’s superior opportunity to
assess witness credibility in determining where the preponderance of the evidence lies.
Hill, supra.
A person commits terroristic threatening in the first degree if, with the purpose of
terrorizing another person, the person threatens to cause death or serious physical injury or
substantial property damage to another person. Ark. Code Ann. § 5-13-301 (a)(1)(A)
(Repl. 2006). Evidence that is not sufficient to support a criminal conviction may be
sufficient to support a revocation. Johnson v. State,
2011 Ark. App. 718.
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Coupey’s challenge to the sufficiency of the evidence is basically a challenge to
Dishno’s credibility. He argues that Dishno’s testimony was inconsistent and that it
demonstrated faulty memory about the alleged incident. We defer to the trial court’s
superior position to judge matters of credibility and the weight that is to be given to the
evidence. Aquilino v. State, 2010 Ark. App. 516. Here, while the trial court did state that
there were things about Dishno’s testimony that concerned it, the court also noted that
Coupey called twice more after the officer arrived, which bolstered Dishno’s credibility.
The trial court also expressed its concern over the fact that, after spending six months in
jail and being ordered not to contact Shelly, “four months after he got out he is making
these phone calls, at least trying to convey messages to Shelly, who was his previous victim
and who he had been ordered by the Court to refrain from contacting.”
Dishno testified that he heard a noise outside his bedroom window; that he went
out to check on it; that he received a phone call from Coupey threatening to cut his
throat with the same knife he used to cut his window screen; that, while the screen had
not been cut, it had been tampered with and was loose in its frame; that the call scared
Dishno; and that as a result he called and reported the incident to the police. The trial
court was clearly concerned that Coupey was disregarding the court’s orders and clearly
found credible Dishno’s testimony that Coupey threatened to cut his throat, that it scared
him, and that he contacted the police about the threat. We hold that the evidence
presented to the trial court is sufficient to support its finding that Coupey violated the
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terms and conditions of his suspended sentence by committing the offense of first-degree
terroristic threatening.
Coupey’s remaining argument challenges the trial court’s denial of his
confrontation-clause objection when Officer Forrest mentioned that he had talked to two
women at the house. We find no merit in this point of appeal.
The confrontation-clause objection was raised when the officer first mentioned that
he had talked to two women while he was at Dishno’s residence in response to the call.
The objection was overruled. The only thing the officer subsequently recounted was that
the two women told him “basically the same story” as Dishno. Moreover, as noted by the
State in its brief, any testimony that the women could have offered beyond that would not
have gone to the crux of the matter before the trial court because Coupey’s alleged threat
to cut Dishno’s throat occurred in a telephone call to Dishno only. That is, the actual
conversation was not overheard by the two women. Consequently, Dishno was the only
witness who could supply the evidence of the terroristic threatening, and the trial court
clearly did not rely upon the officer’s testimony that the women told him “basically the
same story” in making its decision. We hold that there was no violation of Coupey’s right
to confront witnesses under the circumstances of this case.
Affirmed.
WOOD and BROWN, JJ., agree.
Flinn Law Firm, P.A., by: Jennifer Williams Flinn, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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