2013 Ark. App. 732
Ark. Ct. App.2013Background
- Appellant Vilaychanh Phengthavy had prior suspended sentences; a revocation petition alleged he committed delivery of methamphetamine on Sept. 24, 2012.
- A Fort Smith PD controlled buy used a confidential informant wearing audio/video equipment and $100 in marked twenties.
- The informant entered a two-door truck driven by Phengthavy; a female, Mickayla Akins, sold methamphetamine to the informant inside the truck.
- Surveillance stopped the truck minutes later; the marked bills were found on Akins and two twenties were in Phengthavy’s wallet; lab testing confirmed .691 g methamphetamine.
- The circuit court found Phengthavy was an accomplice (present and driving during the sale) and revoked his suspension, committing him to 124 years with 94 years suspended.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to revoke suspended sentence | State: facts (video, presence in truck, marked bills in his wallet) show he was an accomplice to delivery | Phengthavy: evidence insufficient to prove he delivered or conspired; no allegation of accessory or conspiracy in petition | Court: evidence met preponderance standard for revocation; findings not clearly against the evidence — revocation affirmed |
| Notice/fairness re: theory of liability (accomplice vs principal) | State: petition alleged delivery on given date and location, sufficient notice to prepare defense | Phengthavy: petition charged delivery only, failure to plead accomplice liability was fundamentally unfair | Court: no distinction needed between principals and accomplices for notice; pleading delivery was sufficient — no unfairness |
Key Cases Cited
- Foster v. State, 104 Ark. App. 108, 289 S.W.3d 476 (2008) (evidence insufficient for conviction may suffice for revocation)
- Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005) (participants who assist each other are accomplices/criminally liable for each other)
- Holsombach v. State, 368 Ark. 415, 246 S.W.3d 871 (2007) (information need not separately allege accomplice liability to permit accomplice theory at trial)
- Polk v. State, 82 Ark. App. 210, 105 S.W.3d 797 (2003) (State need not allege accomplice theory in indictment to proceed on that theory at trial)