Lewis v. State

2015 Ark. App. 222

• Court: Court of Appeals of Arkansas
• Decided: April 8, 2015
• Docket: CR-14-756
• Status: Published

Opinion

Cite as 2015 Ark. App. 222

ARKANSAS COURT OF APPEALS DIVISION III No. CR-14-756

Opinion Delivered April 8, 2015 HARVEY LAMAR LEWIS APPELLANT APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT V. SMITH DISTRICT [NOS. CR-09-344, CR-11-873] STATE OF ARKANSAS APPELLEE HONORABLE J. MICHAEL FITZHUGH, JUDGE

AFFIRMED

M. MICHAEL KINARD, Judge

Appellant Harvey Lewis appeals from the revocation of his suspended imposition of

sentence (SIS). He argues that there was insufficient evidence that he violated the conditions

of his SIS. We affirm.

On August 19, 2009, in case No. CR-2009-344, appellant entered a negotiated plea

of guilty to theft by receiving, a Class C felony, and was sentenced to ten years’ SIS. He was

also ordered to pay restitution of $1492.75 at the rate of $50 per month beginning ninety

days after his release from imprisonment on other convictions. On September 30, 2011, in

case No. CR-2011-873, appellant entered a negotiated guilty plea to residential burglary, a

Class B felony, and was sentenced as a habitual offender to fifteen years’ imprisonment and

ten years’ SIS. He was ordered to pay restitution of $1000 at the rate of $55 per month

beginning sixty days after his release. Cite as 2015 Ark. App. 222

On June 25, 2014, the State filed a petition to revoke in both cases, alleging that on

June 22, 2014, appellant had committed aggravated robbery. The State also alleged that

appellant had failed to pay his restitution in the 2009 case, leaving an unpaid balance of

$1492.75.

At the beginning of the revocation hearing, appellant’s fine and restitution ledgers

from several cases were admitted into evidence without objection. The ledger for

CR-2009-344 showed that appellant had made no payments toward his $1492.75 restitution.

Regarding the aggravated-robbery allegation, Jill Potts testified that on the night of June 22,

2014, she met with Stevey Estavon West at a mini mart to purchase Xanax from him. Potts

got into the backseat of a car driven by West. Appellant was in the front passenger seat and

was introduced to Potts as “Tyson.” Potts was talking to West when appellant turned

around and pointed a gun at her face. She said that appellant grabbed her cell phone, bag,

and money and said, “[B]itch, you got any more money on you?” She replied that she did

not, and he ordered her out of the car.

On cross-examination, Potts admitted that she did not tell the police that she had met

with West to buy drugs until the police suggested that. She said that she did not remember

the name Tyson when she initially talked to the police, but she later found the name Darnell

Anderson when looking at West’s Facebook account. Potts believed Darnell Anderson was

Tyson’s real name and reported this to the police. However, Potts said that a woman named

Summer Jackson later told her that Tyson and Darnell Anderson were not the same person.

2 Cite as 2015 Ark. App. 222

Potts later identified appellant in a photo lineup, and she testified that she was certain that

“Tyson” was appellant.

Detective Jeff Carter testified that, after speaking with Jackson, Potts reported the

name Tyson Anderson to him. Carter testified that Potts had assumed this man shared the

last name of his brother, Darnell Anderson. Carter was familiar with appellant, who also

went by Harvey Tyson Lewis, and Carter knew him to be Darnell Anderson’s brother.

Carter conducted a photo lineup including appellant, and Potts identified appellant as the

man who had robbed her. When Carter interviewed appellant after his arrest, appellant

initially denied knowledge of the robbery and indicated that it was probably his brother,

Darnell Anderson. After Carter told appellant that a video showed him at the mini mart in

the car, appellant admitted being there but said that West was the one who had robbed the

woman. The trial court found by a preponderance of the evidence that appellant had

violated the conditions of his SIS on both grounds alleged. Appellant was sentenced to

fifteen years’ imprisonment in CR-2011-873 and ten years’ SIS in CR-2009-344.

Arkansas Code Annotated section 16-93-308(d) (Supp. 2013) provides that, if a court

finds by a preponderance of the evidence that the defendant has inexcusably failed to comply

with a condition of his suspension, the court may revoke the suspension at any time prior to

the time it expires. Evidence that is insufficient for a criminal conviction may be sufficient

for the revocation of a suspended sentence. Sherril v. State, 2014 Ark. App. 411, 439 S.W.3d

76. The State bears the burden of proof, but need only prove that the defendant committed

one violation of the conditions. Id. On appeal, the trial court’s decision will not be reversed

3 Cite as 2015 Ark. App. 222

unless it is 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 trial court’s superior position. Id.

Appellant argues that the trial court erred in believing Potts’s testimony because her

admission that she was trying to buy drugs gave her reason to lie. He also claims that the trial

court should have rejected her testimony because she initially failed to tell the police that she

was there for a drug deal; she gave the police the name of another man; she learned

appellant’s name from a friend; and she gave inconsistent testimony on whether she told

police that she identified Darnell Anderson from Facebook.

Appellant’s arguments are without merit. As noted previously, we defer to the trial

court’s superior position to resolve matters of witness credibility and the weight to be given

testimony. Lewis v. State, 2010 Ark. App. 432. While we do not blindly accept a trial court’s

reliance on a witness’s testimony, we may reject it only if it is “inherently improbable,

physically impossible, or so clearly unbelievable that reasonable minds could not differ

thereon.” Id. Potts’s testimony did not rise to this level. She explained her initial naming

of Darnell Anderson and later identification of appellant, and she identified appellant in court.

Thus, the trial court’s finding that appellant had violated the conditions of his SIS on this

ground was not clearly against the preponderance of the evidence.

We can also affirm the revocation on the finding that appellant had failed to comply

with his court-ordered payments. Appellant argues that he did not willfully refuse to pay

because he was jailed on the revocation charge before his payments were scheduled to begin.

4 Cite as 2015 Ark. App. 222

However, appellant is only considering his ability to pay after his release from prison for his

2011 residential-burglary conviction. He neglects to consider the restitution owed for his

2009 theft-by-receiving conviction that became payable ninety days after his release from

prison. The State alleged in the petition to revoke that appellant was released from prison

on February 24, 2011; thus, appellant was required to begin paying the $1492 restitution on

May 25, 2011. He was not jailed on the residential-burglary charge until August 31, 2011.

Appellant presented no excuse for his failure to pay while he was not incarcerated, and we

hold that revocation on this ground was not clearly erroneous.

Affirmed.

ABRAMSON and VAUGHT, JJ., agree.

David L. Dunagin, for appellant.

Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.