Phounsavath v. State

Cite as 2016 Ark. App. 65

ARKANSAS COURT OF APPEALS
DIVISION IV
CR-15-553
No.

SENGATHIT PHOUNSAVATH Opinion Delivered February 3, 2016
APPELLANT
APPEAL FROM THE SEBASTIAN
V. COUNTY CIRCUIT COURT, FORT
SMITH DISTRICT [NOS. CR-2007-
1021 AND CR-2007-1022]
STATE OF ARKANSAS
APPELLEE HONORABLE STEPHEN TABOR,
JUDGE

AFFIRMED

BART F. VIRDEN, Judge

Sengathit Phounsavath appeals the Sebastian County Circuit Court order revoking his

suspended sentence. On January 30, 2008, he pleaded guilty to two charges of conspiracy to

deliver methamphetamine, a class A felony, in two cases: CR-2007-1021 and CR-2007-1022.

Phounsavath was sentenced to five years in the Arkansas Department of Correction plus

fifteen years’ suspended imposition of sentence on these charges. After a hearing on February

18, 2015, the circuit court found that Phounsavath had violated a condition of his suspension

and sentenced him to five years in the Arkansas Department of Correction and to an

additional suspended sentence of ten years, to run concurrently.

I. Facts

At the hearing, Officer Joey Boyd of the Fort Smith Police Department testified that

on August 27, 2014, he received information that a warrant had been issued for the arrest of
Cite as 2016 Ark. App. 65

Curtis Posey on narcotics charges and that Posey would be traveling on I-540 in a tan Honda

CR-V driven by an Asian male. Officer Boyd testified that he was instructed to pull the

vehicle over when he saw it. Officer Boyd recounted that he saw the likely vehicle, and, after

witnessing the driver execute an abrupt lane change without signaling, he turned on his blue

lights to indicate that the driver should pull over. Officer Boyd testified that when he turned

on his blue lights he observed the occupants of the vehicle moving around in the car

“suspiciously” as though they were “trying to retrieve something” and that it took “a long

time” for the driver to pull over. When he reached the vehicle’s window Officer Boyd

recognized Posey, and he requested that the occupants exit the vehicle and stand in the grass

by the interstate. Officer Boyd testified that he asked for consent to search and that

Phounsavath, the driver, denied consent. Officer Boyd testified that he deployed the K-9

officer, who signaled that narcotics had been in the car. Officer Boyd testified that he

conducted a search but did not find narcotics; instead, he found a .25-caliber pistol wrapped

in a red bandana in the glove compartment. Neither Posey nor Phounsavath admitted to

owning the gun, and Officer Boyd testified that Phounsavath stated that he had not known

the gun was in the car.

Officer Boyd ran the tags on the car, which showed that the car did not belong to

Phounsavath. Officer Boyd arrested Phounsavath for possession of a firearm. The State

petitioned the court to revoke Phounsavath’s suspended sentences on the following grounds:

(1) he was a felon in possession of a firearm; (2) he had associated with a known felon; and

(3) he had failed to appear at his revocation hearing. The State further alleged that

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Cite as 2016 Ark. App. 65

Phounsavath had failed to pay fines, costs, fees, and restitution related to the order from two

other criminal cases, CR-2004-1056 and CR-2005-1322, and that he should be held in

contempt.

The circuit court found that Phounsavath was in possession of a firearm and thus in

violation of the condition of his suspended sentences for cases CR-2007-1021 and

CR-2007-1022. The circuit court sentenced Phounsavath to five years in the Arkansas

Department of Correction and to an additional suspended sentence of ten years, to run

concurrently. Phounsavath filed a timely notice of appeal.

On appeal, Phounsavath argues that the evidence that he possessed the firearm was

insufficient; therefore, the circuit court erred when it found that he had violated a condition

of his suspended sentence. Phounsavath argues that the circuit court should have, at most,

held him in contempt for not paying his fines, costs, fees, and restitution from the prior two

cases (CR-2004-1056 and CR-2005-1322). We disagree, and we affirm.

II. Standard of Review and Applicable Law

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, at 2–3, 439

S.W.3d 76, 78. The State bears the burden of proof, but need only prove that the defendant

committed one violation of the conditions. Id. On appeal, the circuit court’s decision will not

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be reversed unless it is clearly against the preponderance of the evidence. Anglin v. State, 98

Ark. App. 34, 36, 249 S.W.3d 836, 838 (2007). Because the determination of a

preponderance of the evidence turns on questions of credibility and weight to be given

testimony, we defer to the circuit court’s superior position. Sherril, supra.

Constructive possession may be implied when contraband is in the joint control of the

accused and another. Webb v. State, 2015 Ark. App. 257, at 6–7, 460 S.W.3d 820, 824–25.

Joint occupancy alone is insufficient to establish possession or joint possession; the State must

also prove that the accused exercised care, control, and management over the contraband and

that the accused knew the matter possessed was contraband. Id. There must be some other

factor linking the accused to the contraband, such as whether it is in plain view, whether it

is found with the accused’s personal effects, whether it is found on the same side of a car seat

where the accused was sitting or in near proximity, and whether the accused is the owner of

the automobile or exercises dominion and control over it. Id.

III. Analysis

After reviewing the testimony, we hold that the circuit court did not err in finding that

Phounsavath constructively possessed the gun and thus violated a condition of his suspended

sentence. Officer Boyd testified that Phounsavath was driving the vehicle, and the glove

compartment where the gun was located was in near proximity to the driver’s seat where

Phounsavath was sitting. Though Phounsavath was not the owner of the vehicle, he was

exercising dominion and control of the car at the time he was pulled over. Officer Boyd

testified that when he turned on his patrol car’s blue lights, Phounsavath and the passenger

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Cite as 2016 Ark. App. 65

began moving around suspiciously and that at one point Phounsavath leaned over while

driving. Officer Boyd also testified that it took a “long time” for Phounsavath to pull over to

the side of the road. According to Officer Boyd’s testimony, the gun was found in the glove

compartment, which was within close proximity to Phounsavath. As we have stated, evidence

that is insufficient for a criminal conviction may be sufficient for the revocation of a suspended

sentence. Sherril, supra. Though the evidence in the form of Officer Boyd’s testimony might

fall short of what would be necessary to convict Phounsavath of criminal charges, it is

sufficient for the revocation of his suspended sentence.

IV. Conclusion

Giving deference to the circuit court in determining the credibility of the witnesses,

we hold that the circuit court did not clearly err in finding that Phounsavath was in

constructive possession of the firearm, and that his possession of the firearm was a violation

of a condition of his suspended sentence. Because we find no error, we decline to address

Phounsavath’s assertion that circuit court should have held him in contempt for failure to pay

fines and restitution.

Affirmed.

KINARD and GLOVER, JJ., agree.

Joseph C. Self, for appellant.

Leslie Rutledge, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., and Rafael Gallaher,
Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission
to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson, Deputy Att’y
Gen., for appellee.

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