Cite as 2015 Ark. App. 46
ARKANSAS COURT OF APPEALS
DIVISION III
CR-14-355
No.
Opinion Delivered January 28, 2015
MICHAEL KHANTHAMANY APPEAL FROM THE SEBASTIAN
APPELLANT COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
V. [NO. CR-10-588]
STATE OF ARKANSAS HONORABLE STEPHEN TABOR,
APPELLEE JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
In March 2011, appellant Michael Khanthamany pleaded guilty to possession of drug
paraphernalia and criminal use of a prohibited weapon and received five years’ suspended
imposition of sentence (SIS). Conditions of his SIS included good behavior and the
requirements that appellant not (1) consort or associate with persons of bad character or
persons planning or encouraging the violation of any laws, or (2) possess or use marijuana,
narcotics, or any other drug or controlled substance prohibited by the controlled-substance
law. The State filed a petition to revoke appellant’s SIS on July 8, 2013, alleging that he had
violated the terms and conditions of his suspended sentence by possessing methamphetamine
and marijuana with intent to deliver, by possessing drug paraphernalia, and by associating with
known felons or persons of bad character who encouraged violation of the law. Appellant’s
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SIS was subsequently revoked, and he was sentenced to a total of four years’ imprisonment
with an additional six years’ SIS.1 Appellant appeals arguing that the State’s evidence was
insufficient to support the revocation of his SIS. We find no error and affirm.
In order to revoke suspension or probation, the trial court must find by a
preponderance of the evidence that the defendant inexcusably violated a condition of the
suspension or probation.2 The appellate court will not reverse a revocation unless the decision
is clearly against the preponderance of the evidence.3 Deference is given to the trial court’s
superior position to determine credibility and the weight to be accorded testimony.4 The
State need only show that the defendant committed one violation to sustain a revocation.5
Officer Nathan Sosebee of the Fort Smith Police Department testified that he came
in contact with appellant while working patrol on May 7, 2013. According to Officer
Sosebee, he initiated a traffic stop on a vehicle, in which appellant was the front-seat
passenger, because the driver was not wearing a seat belt. He stated that he immediately
noticed bandanas hanging on the rear-view mirror and a “large stack of air fresheners.”
Officer Sosebee testified that the bandanas led him to suspect that the occupants of the vehicle
1
He was sentenced to four years’ imprisonment for each charge. He also received six
years’ SIS for the possession charge and two years’ SIS for the prohibited-weapon charge.
These sentences were to run concurrent to each other.
2
Ark. Code Ann. § 16-93-308(d) (Supp. 2013).
3
Denson v. State, 2012 Ark. App. 105.
4
Stultz v. State, 92 Ark. App. 204, 212 S.W.3d 42 (2005).
5
Maxwell v. State, 2010 Ark. App. 822.
2
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were gang members. He also stated that the large presence of air fresheners indicated that
drugs might be present because “there’s a common misconception with people on the street
that tend to sell drugs or narcotics that the more air fresheners they have hanging from the
rear view mirror, the easier it will be to throw off a canine.” Officer Sosebee said without
objection that gang involvement was confirmed by Detective Bollinger with the Street
Crimes Unit.6 One of the vehicle’s occupants had an outstanding warrant, so he was placed
under arrest. Officer Sosebee stated that his request for permission to search the vehicle was
declined, so he called for Officer Boyd to bring his canine to the location. He then asked all
the occupants to step out of the vehicle and checked them for weapons. Nothing was found
on the occupants. According to Officer Sosebee, when the canine arrived, it immediately
alerted on the vehicle. A subsequent search of the vehicle’s console revealed a box of zip-lock
baggies, a small bag of marijuana residue, a small black digital scale, and several grams of
marijuana. A small bag of methamphetamine was found in the rear right-passenger door.
Officer Sosebee stated that since no one admitted ownership of the drugs and paraphernalia,
all four occupants were charged with constructive possession.
At the conclusion of the hearing, the court found that appellant had violated the terms
and conditions of his suspended sentence by associating with persons of bad character who
6
Detective Bollinger heard Officer Sosebee call the occupants’ names over the radio
and told Officer Sosebee to be careful because those individuals were “known gang
members,” even though Officer Sosebee had not mentioned his suspicions about gang
membership.
3
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encouraged violation of the law, by possessing marijuana with the intent to deliver,7 and by
possessing drug paraphernalia.
Evidence supports the court’s finding that appellant violated the terms and conditions
of his suspended sentence by associating with persons of bad character who encouraged
violation of the law. Appellant was in a vehicle with “known gang members” with drugs and
paraphernalia present. Because this violation is sufficient to support appellant’s revocation,
we do not reach the court’s other findings. Accordingly, we affirm.
Affirmed.
KINARD and GRUBER, JJ., agree.
Aubrey L. Barr, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
7
Anthony Martinez, another occupant of the vehicle, subsequently claimed ownership
of the methamphetamine.
4