Full Opinion

Cite as 2026 Ark. App. 419 ARKANSAS COURT OF APPEALS DIVISION I No. CR-25-807 Opinion Delivered September 16, 2026 HAROLD ALLEN APPEAL FROM THE GREENE APPELLANT COUNTY CIRCUIT COURT [NO. 28CR-22-772] V. HONORABLE PAMELA STATE OF ARKANSAS HONEYCUTT, JUDGE APPELLEE AFFIRMED WAYMOND M. BROWN, Judge Appellant Harold Allen appeals an order of the Greene County Circuit Court revoking his suspended imposition of sentence (SIS). On appeal, Allen argues there was insufficient evidence to support the revocation decision. We affirm. On October 28, 2022, Allen pled guilty to failure to comply with sex-offender- registration requirements for which he was sentenced to an eighty-four-months SIS. By his signature, Allen acknowledged the conditions of his SIS; one of the conditions of his suspended sentence required that he not commit a criminal offense punishable by imprisonment. On January 30, 2025, the State filed a petition to revoke Allen’s SIS, alleging that Allen had committed the new offense of second-degree sexual assault. Following the October 13 revocation hearing, the circuit court revoked Allen’s SIS and sentenced him to ten years’ incarceration. He timely appealed. A court may revoke a defendant’s suspended sentence at any time before the expiration of the period of the suspended sentence if the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a term or condition of the SIS.1 The State has the burden of proving that a condition of the SIS was violated. 2 The State need only show that the defendant committed one violation in order to sustain a revocation.3 We will not reverse the circuit court’s findings unless they are clearly against the preponderance of the evidence.4 We defer to the circuit court’s superior position in determining the credibility of witnesses and the weight to be given to their testimony. 5 On appeal, Allen challenges the sufficiency of the evidence to support the revocation. He argues that the circuit court erred in revoking his suspended sentence because the State failed to prove that he violated a condition of his SIS by committing the offense of second- degree sexual assault. Here, Allen’s fifteen-year-old stepdaughter, minor victim (“MV”), testified that, on approximately five different occasions, Allen grabbed her buttocks when he hugged her. MV testified that, on another occasion, while she was asleep, Allen entered her bedroom and touched her breast. She stated that she had woken up and was too scared to do anything; 1 Ark. Code Ann. § 16-93-308(d) (Supp. 2023). 2 Baker v. State, 2016 Ark. App. 468. 3 Vangilder v. State, 2018 Ark. App. 385, 555 S.W.3d 413. 4 Baker, supra. 5 Id. 2 however, when Allen attempted to place his hands between her legs, she told him to stop, and he left her room. MV testified that she reported the inappropriate touching incidents to her mother and a roommate living in the home, but no action was taken. A person commits second-degree sexual assault when he or she engages in sexual contact with another person by forcible compulsion.6 Sexual contact means an 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. 7 Forcible compulsion is defined as physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.8 Physical force means any bodily impact, restraint, or confinement, or the threat thereof.9 Allen contends the State failed to prove the forcible-compulsion element of the statute. The test for determining if there was forcible compulsion is whether the act was against the will of the person on whom the act was committed.10 The quantum of force need not be considered as long as the act is committed against the victim’s will. 11 The age of a victim and the relationship of the victim to the assailant are key factors in weighing the 6 Ark. Code Ann. § 5-14-125(a)(1) (Repl. 2024). 7 Ark. Code Ann. § 5-14-101(12)(A) (Repl. 2024). 8 Ark. Code Ann. § 5-14-101(3). 9 Arendall v. State, 2010 Ark. App. 358, 377 S.W.3d 404. 10 Id. 11 Id. 3 sufficiency of the evidence to prove forcible compulsion.12 When an assailant stands in loco parentis to a victim, the law regarding force is satisfied with less than a showing of the utmost physical resistance of which the victim is capable.13 Evidence insufficient for a criminal conviction may be sufficient to support a revocation.14 MV, Allen’s fifteen-year-old stepdaughter, testified that he grabbed her buttocks and/or breasts multiple times. She reported the incidents to two different people and told them that the touching was unwanted and against her will. This is sufficient to establish that Allen engaged in sexual contact with his stepdaughter by forcible compulsion and thus supports the revocation of his SIS. Allen also argues on appeal that the revocation must be reversed due to a due-process violation. He contends that the violation alleged in the revocation petition differed from the violation proved at the revocation hearing. Specifically, the petition alleged that he committed second-degree sexual assault; however, the circuit court found that he had violated the terms of his SIS by engaging in unlawful activity. He asserts that because he was not alleged to have violated his SIS conditions by generally engaging in unlawful activity, the hearing was fundamentally unfair and violated his due-process rights. The denial of any right, even a constitutional one, must be objected to at trial to be preserved for appeal.15 Allen did not raise an objection when the court found that the State proved 12 Pinder v. State, 357 Ark. 275, 166 S.W.3d 49 (2004). 13 Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995). 14 Tyler v. State, 2021 Ark. App. 23, 616 S.W.3d 663. 15 Cheshire v. State, 80 Ark. App. 327, 95 S.W.3d 820 (2003). 4 by a preponderance of the evidence that he had violated the terms of his suspended sentence by engaging in unlawful activity. Because he failed to object, we affirm the circuit court’s revocation decision. Affirmed. BARRETT, J., agrees. HARRISON, J., concurs. BRANDON J. HARRISON, Judge, concurring. I agree that the circuit court’s decision to revoke Allen’s suspended imposition of sentence and impose a sentence should be affirmed, though I would do so for different reasons. On Allen’s argument that the record doesn’t support a “true” finding that he committed second-degree sexual assault by forcible compulsion, Ark. Code Ann. § 5-14- 125(a)(1) (Repl. 2024), he may have an arguable point in my view. But the State did not specifically allege that subsection in the petition to revoke. Allen never asked it to be more specific either. Instead, the petition alleged, more generally, thus: * * * PETITION TO REVOKE DEFENDANT Comes Sonia F. Hagood, Prosecuting Attorney within and for the Second Judicial Circuit of the State of Arkansas, and in the name and by the authority of the State of Arkansas, and for his petition to the court herein states: That Harold L. Allen the defendant herein, pled guilty in this court on October 28, 2022, to the crime(s) of Sex Offender Failing to Register and received 84 months of Suspended Imposition of Sentence on each count [on] conditions set forth therein. That such suspended imposition of sentence and/or supervised probation was conditioned upon good behavior of such defendant, and said 5 defendant has violated the conditions of the suspended imposition of sentence and/or supervised probation in the following particulars as well as anything else referred to in any attached exhibits: ALLEN was arrested for the offense of Sexual Assault in the Second Degree on or about January 14, 2025. That a bench warrant should be issued for the arrest of the defendant, that such suspended imposition of sentence and/or supervised probation be revoked; that the court order execution of the full sentence as heretofore imposed herein: and the penitentiary commitment be issued herein committing said defendant to the Arkansas Department of Corrections to serve the full sentence. WHEREFORE, the state prays that a bench warrant be issued herein for the arrest of the defendant; the suspended imposition of sentence and/or supervised probation be revoked/that the court order execution of the full sentence; and the penitentiary commitment be issued committing said defendant to the Arkansas Department of Correction. * * * There is no dispute that Allen’s 14 January 2025 arrest involved the same conduct and victim that was proved at the revocation hearing. Under a preponderance standard, that proof established Allen committed second-degree sexual assault under multiple subsections of section 5-14-125. Allen’s principal brief focuses his fire on section 125(a)(1) (forcible compulsion), but again, neither the petition nor the circuit court’s ruling limit this case to that subsection. At the hearing’s end, the circuit court ruled, “The Court finds that the State has proven by a preponderance of the evidence that the defendant has engaged in unlawful activity while under the suspended imposition of sentence, that he’s violated the terms of his sentence.” During the hearing, the court received ample evidence (if credited) to support a second-degree sexual assault under other provisions of section 5-14-125 that are quite 6 different from the one Allen’s counsel relies on. First, Allen was the minor victim’s stepfather. Section 125(a)(4)(A)(iv) states that a person commits second-degree sexual assault if he “[e]ngages in sexual contact with a minor and the actor is . . . [t]he minor’s guardian, . . ., a temporary caretaker, or a person in a position of trust or authority over the minor.” And her testimony, which the circuit court believed, brought Allen’s conduct within section 125(a)(4)(A)(iv): a stepparent is a “guardian” in this subchapter. Ark. Code Ann. § 5-14- 101(4) (Repl. 2024) (“‘Guardian’ means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor.”). The same statute also prohibits sexual contact with one who cannot give consent because she is “[p]hysically helpless.” Ark. Code Ann. § 5-14-125(a)(2)(A). Being “physically helpless” includes being “[u]nconscious.” Ark. Code Ann. § 5-14-101(8)(A). And being “[u]nconscious” includes being asleep. Robinson v. State, 2016 Ark. App. 550, 506 S.W.3d 881. The victim testified Allen grabbed her breasts and was moving his hand to between her legs when she “woke up and . . . told him to stop.” Connect the next dot. One of the stated conditions of Allen’s SIS expressly forbade him from “commit[ting] a criminal offense punishable by imprisonment.” One may be imprisoned for committing any second-degree sexual assault.1 1 Second-degree sexual assault is either a Class B or Class D felony. Ark. Code Ann. § 5-14-125(b)(1) & (2). In the revocation setting, the court’s sentencing options were determined by the offense for which Allen was convicted originally, not the offense proved in the revocation hearing. Bennion v. State, 2022 Ark. App. 290, 645 S.W.3d 37. 7 Given that the circuit court credited the testimony about Allen’s relationship to the victim and his proscribed conduct toward the victim, a revocation under section 125(a)(4)(A)(iv) or (a)(2) would survive a sufficiency challenge under our standard of review. Allen has not challenged sufficiency under those provisions of section 5-14-125, the statute identified in the petition to revoke. And the circuit court did not narrow its finding to any particular one. See Johnson v. State, 343 Ark. 343, 349, 37 S.W.3d 191, 195 (2001) (rejecting attempt to reverse disorderly conduct conviction under just one theory the evidence supported because “there is only one crime of disorderly conduct, but several different ways of committing it.”). The bottom legal line is that the circuit court’s decision was not clearly against the preponderance of the evidence presented during the hearing and must therefore be affirmed. Allen’s second argument in his brief alludes to a procedural due-process violation. He essentially presses that the petition’s content/the court’s ruling were too general or vague and are therefore unfair. Whether such an argument has legal teeth will not be decided today because it was not raised and argued below. So naturally, the circuit court did not address or rule on the question. I wholly agree with my colleagues on this point. Where the same conduct with the same victim could violate section 5-14-125 in more than one way, then “either a statutory or due-process lack-of-notice claim must be raised below to be entertained on appeal.” Black v. State, 2026 Ark. App. 257, at 5. Counsel has not presented why this general rule should not apply here. 8 * * * Allen’s appellate counsel’s advocacy has been zealous, but the record and the law don’t require a reversal here. I therefore join my colleagues’ decision to affirm the circuit court’s decision to revoke Allen’s suspended imposition of sentence and impose one. Lassiter & Cassinelli, by: Michael Kiel Kaiser, for appellant. Tim Griffin, Att’y Gen., by: Mallory Wood, Ass’t Att’y Gen., for appellee. 9