Harris v. State , 2017 Ark. App. LEXIS 521 ( 2017 )

Cite as 2017 Ark. App. 452ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-17-1
JESSE EMANUEL HARRIS Opinion Delivered: September 20, 2017
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
STATE OF ARKANSAS [NO. 66FCR-13-1167]
APPELLEE
HONORABLE J. MICHAEL
FITZHUGH, JUDGE
AFFIRMED
RITA W. GRUBER, Chief Judge
In November 2013, Harris was charged with maintaining premises for drug activities
and possession of drug paraphernalia. Pursuant to a plea agreement, Harris pled guilty to
possession of drug paraphernalia, and the other charge was nolle prossed. Harris was
sentenced to two years’ imprisonment with an additional four years’ suspended imposition
of sentence (SIS). The terms of his SIS included a requirement that he not violate any
federal, state, or municipal law, and that he not possess marijuana, narcotics, or any other
drug or controlled substance prohibited by the controlled-substance law. In May 2016, the
State filed a petition to revoke Harris’s SIS, alleging that he had committed the offenses of
possession of drug paraphernalia, possession of methamphetamine, and possession of ecstasy,
and that these charges were currently pending in the Sebastian County Circuit Court. The
circuit court revoked Harris’s SIS in an order entered on December 20, 2016, which Harris
appeals. We affirm Harris’s revocation.
Cite as 2017 Ark. App. 452The arguments on appeal are somewhat complicated by the circuit court’s procedural
decisions in this case. On December 7, 2016, the circuit court was to conduct a hearing on
the petition to revoke in this case, CR-2013-1167, and on a motion to suppress that Harris
had filed in CR-16-595, the criminal case involving the actions for which the revocation
petition had been filed. Because the officer’s testimony in the revocation hearing was
expected to be the same in both cases, the court made the following decision before the
testimony was elicited in the revocation hearing:
PROSECUTOR: He has a motion to suppress and that was set for 3:00. We
were hoping to hear both right now. If that is not the case,
my Crime Lab witness needs to go back. I don’t know if
you have any objections to that.
DEFENSE ATTORNEY: Well, I think I need to hear some of the testimony from the
officers.
COURT: Is this the case I have for Monday?
DEFENSE ATTORNEY: Yes, sir.
COURT: So, we are having the PTR hearing today and we are
having a trial on Monday?
DEFENSE ATTORNEY: Yes, sir. They didn’t want to continue anything.
COURT: You filed a motion to suppress. I think I got your response
today.
PROSECUTOR: Yes, sir.
COURT: So, how do you want to proceed? Do you want to do them
all in the same hearing or tell me what you want to do.
DEFENSE ATTORNEY: I think I need to hear some of the officers’ testimony before
my motion to suppress. So, when he said you would do
them at the same time I thought he meant all at 1:30 instead
of making her wait until 3:00. So, if we could do the PTR
and then the motion to suppress.
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Cite as 2017 Ark. App. 452COURT: Let me ask you this. Is the testimony going to be pretty
much the same? What I am saying is, is after I hear
everything for the PTR, is it agreeable that whatever I
hear on the PTR I can then use and right after I rule on
the PTR I could rule on the motion to suppress?
DEFENSE ATTORNEY: Yes, sir; that’s what I thought you meant.
PROSECUTOR: Yes, sir. We will knock them both out at the same time.
COURT: I hate to have these officers here at 1:30 and then have
them sit around for another hour or whatever and then
come back and do it at 3:00. So, we will kill two birds
with one stone.
At the hearing, Fort Smith Police Officer Cody Elliott testified that on May 10,
2016, he was observing a house where drug dealing was suspected. Someone pulled up to
the house in a tan Porsche Cayenne but then quickly pulled away when the driver saw the
patrol car. When Officer Elliott “ran the tag,” he discovered the car had been stolen, and
he pursued it. Officer Elliott lost sight of the vehicle and returned to the house he had been
observing; upon his return, he saw Harris and several other people standing outside the
house. Officer Elliott testified that he and Harris knew each other and were on a first-name
basis.
According to Officer Elliott, he approached the group to see if anyone knew who
had been driving the Porsche. As he was talking, he looked down on the ground and saw
what he believed to be narcotics, specifically, a bag of methamphetamine and a bag of
ecstasy. He said the bags were right beside Harris’s feet. As Officer Elliott picked up the
bags, Harris said, “Cody, that is mine.” Officer Elliott then placed Harris under arrest and
took him to headquarters. The crime-lab report indicated that the items seized were
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Cite as 2017 Ark. App. 452methamphetamine, both in pill form and crystal form. On cross-examination, Officer Elliot
confirmed that he did not find any drugs on Harris’s person, nor did he observe Harris place
the drugs on the ground.
At the conclusion of the hearing, the court made the following rulings:
On the PTR, it is just a preponderance of the evidence and the Court has no
difficulty in finding that the Defendant violated the terms of his release. A judgment
of conviction will be entered against him on the charge. He will be sentenced to the
Department of Correction for a term of four years’ incarceration, which is the
balance of what it is, apparently he has in 2013-1167.
As to the motion to suppress, the Court is going to deny the motion. This
gentleman was not in custody, he was just merely being asked about somebody who
fled, and he voluntarily made the statement to Cody, That stuff is mine. So, your
motion to suppress will be denied.
We are going to trial on Monday.
We turn first to Harris’s argument that the evidence was insufficient to revoke his
suspended sentence. He claims that the State failed to prove that he possessed the
methamphetamine because he did not live at the house where it was discovered, he was
standing in a group of people near the drugs, and no drugs were discovered on his person
in a search after his arrest. He argues that nothing ties him physically to the seized plastic
bags of narcotics.
To revoke probation or a suspended sentence, the burden is on the State to prove
the violation of a condition of the probation or suspended sentence by a preponderance of
the evidence. Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004). On appellate review,
the circuit court’s findings will be upheld unless they are clearly against the preponderance
of the evidence. Id. Because the burdens are different, evidence that is insufficient for a
criminal conviction may be sufficient for revocation of probation or suspended sentence. Id.4
Cite as 2017 Ark. App. 452Thus, the burden on the State is not as great in a revocation hearing. Id. Furthermore,
because the determination of a preponderance of the evidence turns on questions of
credibility and weight to be given to the testimony, we defer to the circuit court’s superior
position. Id.Here, Officer Elliott testified that the package was within “a foot” of Harris’s feet.
He also said that as he picked up the package, Harris volunteered, “Cody, those are mine.”
A defendant’s confession that he violated a condition of his suspended sentence is sufficient
to support revocation. Freeman v. State, 2010 Ark. App. 8, at 5 (citing Selph v. State, 264
Ark. 197, 570 S.W.2d 256 (1978)). We hold that the court’s findings are not clearly against
the preponderance of the evidence.
Harris also contends that the circuit court erred in denying his motion to suppress
and admitting his statement that the narcotics belonged to him. We do not address this
argument because the motion to suppress was not made in this revocation case but in his
criminal case, CR-16-595. He admits that his written motion to suppress was filed in the
criminal case, not in this revocation, and we note that there is no motion to suppress or
response to such a motion in the record on review. The court heard the testimony in the
revocation hearing with the parties’ agreement that the court would use the testimony to
make findings both in the revocation case and on the motion to suppress in the criminal
case. The court’s ruling very clearly does just that. Harris argues that we can review the issue
because there is “a ruling from the trial court on the issue.” Harris is mistaken. We cannot
review a ruling of the circuit court that was made in a case other than the case on review.
Harris’s criminal appeal is not before us.
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Cite as 2017 Ark. App. 452Affirmed.
GLADWIN and KLAPPENBACH, JJ., agree.
Ledbetter, Cogbill, Arnold & Harrison, LLP, by: Joseph Karl Luebke, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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