Howard v. State

2016 Ark. App. 69, 482 S.W.3d 741, 2016 Ark. App. LEXIS 77
CourtCourt of Appeals of Arkansas
DecidedFebruary 3, 2016
DocketCR-15-566
StatusPublished
Cited by3 cases

This text of 2016 Ark. App. 69 (Howard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. State, 2016 Ark. App. 69, 482 S.W.3d 741, 2016 Ark. App. LEXIS 77 (Ark. Ct. App. 2016).

Opinion

DAVID M. GLOVER, Judge

hln March 2013, appellant Michael Howard pled guilty to being a felon in possession of a firearm. The circuit court suspended imposition of sentence for six years, conditioned on good behavior and payment of fines, court costs, and fees. In November 2014, the State filed a petition to revoke ■ Howard’s suspended sentence, alleging Howard had committed- two counts of theft by receiving. After a hearing, Howard’s suspended sentence was revoked, and he was sentenced to six years in the Arkansas Department of Correction. Howard now appeals the revocation of his suspended sentence, arguing the State violated his right to confront witnesses against him during the revocation hearing. We affirm.

At the revocation hearing, Detective Donald Eversole with the Van Burén Police Department testified that in August 2013, Chevrona Lewis filed a residential-burglary and theft-of-property report, reporting a television, PlayStation, some games, an iPad, an iPod, and some other items were missing from her residence. Lewis provided serial numbers for the 12PIayStation, the iPod, and the iPad, and in October 2014, Eversole learned the serial number of the iPad had shown up as having been pawned at A and B Pawn Shop by Tuesday Howard, appellant’s wife. When the State attempted to introduce the receipt for the iPad ‘from A and B Pawn, Howard' objected on the basis that it violated the Confrontation Clause because Eversole was not the person from the pawn shop; this objection was overruled. Eversole testified the iPad’s serial number matched the one given-by Lewis, and based on his conversation's-with Tuesday Howard, he was led to appellant, who first told Eversole he got the iPad from his wife’s brother and then changed his' story, stating that Lewis let him borrow the iPad so that he would not get into trouble with his wife (he and Lewis had met on a dating site and were seeing each other for a brief time). Eversole testified that Howard then came to ■ the police station for an interview -and again first told him the pawned iPad belonged to Tuesday’s brother. He explained that Howard then changed his story, admitting he had Lewis’s iPad but claiming Lewis had allowed him to borrow it to “cover his ass” with his wife so he could tell her that he was picking up his tablet from his cousin instead of admitting that he had been at Lewis’s house.

Eversole further testified he continued to check Leads Online and found that a man named Christopher Wilier had returned or sold the PlayStation matching Lewis’s serial numbers to Game Traders; Game Traders provided a receipt showing Howard had originally sold the PlayStation to Game Traders. Howard again objected to the introduction of the Game Traders receipt based on violation of the Confrontation Clause, which was overruled. Ever-sole testified that, in a telephone interview with Howard, Howard told him Lewis | ..¡wanted to borrow $200 from him to move, which he loaned her, and he took the PlayStation as collateral. Howard said he tried to call Lewis after she moved but he had not heard from her.

Chevrona Lewis testified she knew Howard as Michael Smith; that he told her he was single; that her acquaintance with him lasted a month or less; that he had been to her residence one time during that period; that her home was burglarized in August 2013; that she did not suspect Howard in the burglary; that Howard texted hey and told her not to call or text him again; and that her phone number was the same number it had been since 2005. Lewis denied she had given the. iPad to Howard as a cover story. She also denied ever borrowing money from Howard or giving him the PlayStation, as collateral for a loan; in fact, she testified it was..Howard who asked to borrow money from her, which she declined to lend.

Howard renewed his objection to the pawn ticket from A and B Traders and the receipt from Game Traders, arguing that both were testimonial under the Confrontation Clause. These objections were denied, and the trial court revoked ^Howard’s suspended sentence. Howard now brings this appeal.

In order to revoke probation or a suspension, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of that probation or suspension. Holmes v. State, 2012 Ark. App. 451, 2012 WL 3744716. In a hearing to revoke, the burden is on the State to prove a violation of a condition of the suspended sentence by a preponderance of the evidence. Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005). On |,appellate review, the trial court’s findings are upheld unless they are clearly against the preponderance of the evidence. Id. Because of the lower burden of proof, evidence that is insufficient to support a criminal conviction may be sufficient for the revocation of a suspended sentence. Knotts v. State, 2012 Ark. App. 121, 2012 WL 387852. The appellate courts defer to the trial court’s superior position to determine credibility and the weight to be accorded testimony. Stultz, supra.

Howard argues that the pawn ticket and the Game Traders receipt were testimonial in nature in violation of the Confrontation Clause. Although the rules of evidence, including the hearsay rule, are not strictly applicable in revocation proceedings, the right to confront witnesses is applicable. Caswell v. State, 63 Ark. App. 59, 973 S.W.2d 832 (1998). The Confrontation Clause applies to “witnesses” who “bear testimony” against the accused, with testimony typically being “[a] solemn declaration or affirmation made for the- purpose of establishing or proving some fact.” Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). “Testimonial statements of witnesses absent from trial are admissible only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Raquel-Dieguez v. State, 2015 Ark. App. 626, at 6, 475 S.W.3d 585, 589 (citing Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354,158 L.Ed.2d 177 (2004)). In Crawford, the Supreme Court held that a “core class” of “testimonial” statements exists that include

ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, pri- or testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecuto-rially; extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness [(¡reasonably to believe that the statement would be available for use at a later trial.

Crawford, supra, at 51-52, 124 S.Ct. 1354.

In support of his argument that the trial court violated his right to confront witnesses by allowing the pawn ticket and the Game Traders receipt into evidence, Howard cites Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).

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Bluebook (online)
2016 Ark. App. 69, 482 S.W.3d 741, 2016 Ark. App. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-state-arkctapp-2016.