Phengthavy v. State , 2013 Ark. App. 732 ( 2013 )

Cite as 2013 Ark. App. 732
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-13-118
VILAYCHANH PHENGTHAVY Opinion Delivered December 11, 2013
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH AND GREENWOOD
DISTRICTS [NOS. CR-2007-302, CR-
STATE OF ARKANSAS 2007-303, CR-2007-304, CR-2007-
APPELLEE 943(b), G-CR-2011-37]
HONORABLE JAMES O. COX,
JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Appellant Vilaychanh Phengthavy’s suspended sentences for various drug-related
convictions were revoked in an order entered on December 19, 2012, and he was sentenced
to 124 years in prison with 94 years suspended. His sentences were revoked because he
committed the offense of delivery of methamphetamine, a violation of the terms and
conditions of his suspended sentences. On appeal, he contends that there is insufficient
evidence to support the revocation and that the State’s failure to notify him that his violation
was based on accomplice liability was fundamentally unfair. We affirm the circuit court’s order
revoking appellant’s suspended sentence.
The Fort Smith Police Department set up a controlled buy using a confidential
informant on September 24, 2012. The informant was wearing a video- and audio-recording
device. The informant had been given $100 in twenty-dollar bills whose serial numbers had
Cite as 2013 Ark. App. 732
been recorded. The informant met a female, Mickayla Akins, in a Walmart parking lot. Ms.
Akins was in a two-door white Chevrolet truck being driven by appellant. The informant got
in the front seat of the truck next to Ms. Akins, and appellant drove the truck around the
parking lot while Ms. Akins sold methamphetamine to the informant in exchange for the
$100. After the informant got out of the truck and gave the methamphetamine to the police,
the police told the detectives keeping surveillance on the truck to initiate a stop of the
vehicle.
Officers stopped appellant’s truck several minutes later and discovered all of the bills
that had been given to the informant to purchase the methamphetamine in the possession of
Ms. Akins and appellant; two of the twenty-dollar bills were in appellant’s wallet. The
substance sold to the confidential informant was determined by the Arkansas State Crime Lab
to be .691 grams of methamphetamine and dimenthyl sulfone, a cutting agent.
At the close of the evidence, appellant argued that the evidence failed to show that he
committed the offense of delivery of methamphetamine, as charged in the petition for
revocation. He contended that the State did not allege that he committed the offense of
conspiracy or accessory to delivery of methamphetamine. The circuit court pronounced from
the bench that the video of the transaction clearly captured the transaction in the truck that
appellant was driving. “I am persuaded that [appellant] knew what was going on.” The court
found “no doubt” that appellant was an accomplice and that, because he was an accomplice,
he was “in the transaction to the same extent as Ms. Akin.” The court entered a judgment and
commitment order sentencing him to 124 years in the Arkansas Department of Correction
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with 94 years suspended.
Our standard of review in revocation cases is well settled. Because the burden of proof
in a revocation proceeding is less than that required to convict in a criminal trial, evidence
that is insufficient for a conviction may be sufficient for a revocation. Reyes v. State, 2012 Ark.
App. 358. When the sufficiency of the evidence is challenged on appeal, we will not reverse
a trial court’s decision to revoke unless its findings are clearly against the preponderance of the
evidence. Id. Because the determination of a 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. Collier v. State, 2013 Ark. App. 643, at 2–3.
For his first point on appeal, appellant argues that there was insufficient evidence to
support the court’s finding that he was an accomplice to the delivery of methamphetamine.
Evidence that is insufficient for a criminal conviction may be sufficient to support a
revocation. Foster v. State, 104 Ark. App. 108, 110, 289 S.W.3d 476, 477 (2008). When two
persons assist one another in the commission of a crime, each is an accomplice of the other
and criminally liable for the conduct of both. Tillman v. State, 364 Ark. 143, 150, 217 S.W.3d
773, 777 (2005). In this case, the drug transaction occurred in the cab of appellant’s truck
while appellant was driving. Appellant picked up the informant, drove around the Walmart
parking lot for a few minutes, and then let the informant out of the truck. Moreover, when
his truck was stopped a few minutes later, two of the twenty-dollar bills the informant used
to pay for the methamphetamine were in appellant’s wallet. The court found these facts
persuasive that appellant was involved in the transaction and was an accomplice. We hold that
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its findings are not clearly against the preponderance of the evidence.
In his second point on appeal, appellant contends that the State’s failure to mention in
the petition for revocation that the violation of his conditions was based on accomplice
liability was fundamentally unfair. He argues that the State alleged he had committed the
offense of delivery of methamphetamine, not that he was an accomplice to the offense. Our
supreme court rejected a similar argument in Holsombach v. State, reasoning that an
information is not defective if it sufficiently apprises the defendant of the specific crime with
which he is charged to the extent necessary to enable him to prepare a defense, and that there
is no distinction between principals and accomplices for purposes of establishing criminal
liability. 368 Ark. 415, 431, 246 S.W.3d 871, 882 (2007) (rejecting argument that State was
required to allege accomplice liability in criminal information to request an accomplice
instruction at trial); see also Polk v. State, 82 Ark. App. 210, 215, 105 S.W.3d 797, 800 (2003)
(holding that State was not required to allege an accomplice theory in defendant’s indictment
in order to proceed with the theory at trial). The petition informed appellant that it was based
in part on his commission of the offense of delivery of methamphetamine on September 24,
2012. Appellant was in his truck when the alleged offense was committed. This was sufficient
notice to enable him to prepare a defense.
We affirm the revocation.
GLADWIN, C.J., and WALMSLEY, J., agree.
The Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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