Eldavions B. Holliman v. State of Arkansas

2023 Ark. App. 390, 676 S.W.3d 281

• Court: Court of Appeals of Arkansas
• Decided: September 20, 2023
• Status: Published

Opinion

Cite as 2023 Ark. App. 390 ARKANSAS COURT OF APPEALS DIVISION II No. CR-22-744

ELDAVIONS B. HOLLIMAN Opinion Delivered September 20, 2023

APPELLANT APPEAL FROM THE CRITTENDEN V. COUNTY CIRCUIT COURT [NOS. 18CR-10-501; 18CR-10-1101] STATE OF ARKANSAS HONORABLE TONYA M. APPELLEE ALEXANDER, JUDGE

AFFIRMED

ROBERT J. GLADWIN, Judge

This is an appeal from a Crittenden County Circuit Court’s order revoking appellant

Eldavions Holliman’s (Holliman’s) probation and sentencing him to ten years’

imprisonment followed by a ten-year suspended imposition of sentence, to run concurrently.

Holliman argues that the circuit court erred in revoking his probation because it allowed

testimony that was not relevant to any issue at the revocation hearing. We affirm.

I. Background Facts

In 2011, Holliman entered a negotiated guilty plea to the sale or delivery of a

controlled substance in two cases, Crittenden County Circuit Court cases Nos. 18CR-10-

501 and 18CR-10-1101. He received 120 months’ probation on both counts. Among the

conditions of his probation, Holliman was to live a law-abiding life, be of good behavior, and

not violate any state, federal, or municipal law. On August 23, 2019, the State filed petitions to revoke Holliman’s probation, alleging

that he committed the new offense of rape. The circuit court held a hearing on the

revocation petitions on June 3, 2022. At the hearing, the State presented testimony from

the victim of the alleged rape wherein she provided dates and details of the various incidents.

Specifically, the minor victim testified that the first account took place in December 2017,

and Holliman made her take off her clothes and “give him oral sex.” She further testified

that it happened again in 2018, that Holliman had been drinking, and he made her take her

clothes off, started touching her, and then “made [her] give him oral sex again.” The victim

was twelve years old at the time of the first alleged rape. She continued by describing the

details of another account in which Holliman forced her to undress and perform oral sex.

During cross-examination of a State witness—the minor victim’s maternal aunt—

defense counsel asked about her reasons for believing the child’s allegations, and the witness

testified, “And then the situation of [Holliman] letting us know that he went through the

same thing with his dad, I do believe that.” On redirect examination, the State asked the

same witness for clarification regarding her response:

STATE: You said something that I hadn’t heard before. He told you, Mr. Holliman had a conversation with you where he said that he was sexually abused?

WITNESS: Yes. Me and his brother used to date and he told me and my sister that his dad used to make him have sex with his sisters.

Defense counsel objected, arguing that the testimony was not relevant to whether Holliman

had violated the conditions of his probation. However, the State maintained that because

2 defense counsel had elicited such response, it was entitled to redirect the witness on the

testimony. The circuit court overruled the objection conditioned upon the witness’s

testifying only to what she heard and instructed the State to “move on.” The State excused

the witness and rested its case.

Defense counsel continued the line of questioning with a different witness—

Holliman’s girlfriend—asking whether Holliman had ever mentioned being “sexually abused

in the past.” Furthermore, during Holliman’s testimony, his counsel asked whether he had

ever been sexually assaulted as a child, to which Holliman replied no.

At the conclusion of the hearing, the circuit court held that the State proved by a

preponderance of the evidence that Holliman had violated the terms and conditions of his

probation by committing the acts of sexual assault against the minor victim on at least one

occasion. The court based its ruling primarily on the testimony of the victim, whom it found

to be truthful in her account of the events. Holliman was sentenced to ten years in the

Arkansas Division of Correction in case No. 18CR-10-501, with a concurrent ten-year

suspended imposition of sentence in case No. 18CR-10-1101. He filed a timely notice of

appeal of both revocations. This appeal followed.

II. Standard of Review

The State must prove by a preponderance of the evidence that a defendant

inexcusably failed to comply with a condition of his or her probation. Ark. Code Ann. § 16-

93-308(d) (Supp. 2023). A circuit court’s decision to revoke probation will be upheld on

3 appeal unless the decision is clearly against the preponderance of the evidence. Bohannon v.

State, 2014 Ark. App. 434, 439 S.W.3d 735.

Furthermore, this court reviews evidentiary rulings under an abuse-of-discretion

standard and will not reverse absent an abuse of that discretion and a showing of prejudice.

Fannin v. State, 2021 Ark. App. 304, 624 S.W.3d 727.

III. Discussion

On appeal, Holliman does not dispute the sufficiency of the evidence supporting the

revocations of his probation. Rather, he contends that the witness testimony regarding

allegations of prior sexual abuse upon Holliman was not relevant to any issue at the

revocation hearing; and moreover, that such evidence does not fall under the “pedophile

exception,” which allows the State to introduce evidence of a defendant’s prior bad acts with

the same or other children.

Regarding relevance, Holliman correctly acknowledges that the rules of evidence do

not apply in revocation hearings. See Ark. R. Evid. 1101(b)(3). Arkansas Code Annotated

section 16-93-307(c)(2) (Repl. 2016) states that a court “may permit the introduction of any

relevant evidence of the alleged violation, including a letter, affidavit, and other documentary

evidence, regardless of its admissibility under the rules governing the admission of evidence

in a criminal trial.” Even if the rules did apply, however, we find no abuse of discretion in

the circuit court overruling Holliman’s objection.

Holliman contends that the State elicited testimony from the witness; however, he

failed to mention that it was defense counsel’s cross-examination of the witness that opened

4 the door to further inquiry by the State. Inadmissible testimony may be offered when one

party has opened the door for another party to offer it. Sanford v. State, 2019 Ark. App. 10,

567 S.W.3d 553. Here, defense counsel examined the minor victim’s aunt about why she

believes the allegations against Holliman, and the witness testified to Holliman’s allegations

of prior sexual abuse by his father. The circuit court then allowed the State, on redirect, to

ask one question of the same witness to clarify her prior testimony. The State merely

exercised its right to question a witness on a new matter brought out on cross-examination.

Additionally, defense counsel developed the testimony by questioning a different witness as

well as Holliman himself regarding the alleged past sexual abuse. Thus, we find no abuse of

discretion.

IV. Conclusion

We find no abuse of discretion in the circuit court’s overruling Holliman’s objection

to certain witness testimony; thus, both revocations are affirmed.

Affirmed.

BARRETT and HIXSON, JJ., agree.

Bart Ziegenhorn, for appellant.

Tim Griffin, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.