Lemons v. State
| Decision Date | 14 September 1992 |
| Docket Number | No. CR,CR |
| Citation | 310 Ark. 381,836 S.W.2d 861 |
| Parties | Ernest Dewayne LEMONS, Appellant, v. STATE of Arkansas, Appellee. 91-108. |
| Court | Arkansas Supreme Court |
Daniel D. Becker, Hot Springs, for appellant.
Pamela Rumpz, Asst. Atty. Gen., Little Rock, for appellee.
The appellant, Ernest Dewayne Lemons, had his probation revoked by the trial court because he failed to comply with certain conditions of his probation. The primary issue before us is whether or not the trial court erred in finding the circumstantial evidence adduced during its hearing was sufficient to support revocation. We affirm the trial court.
In August 1989, Lemons pled guilty to two counts of theft of property over $2500 and one count of theft of property over $200 and was placed on probation by the trial court. In August 1990, the state filed a petition to revoke his probation on grounds arising out of the facts surrounding his arrest for the shooting death of Greg Stephens. A probation revocation hearing was held prior to Lemons' murder trial. Based upon the testimony of Lemons' probation officer, two police officers who investigated the murder charge, and a witness from the murder scene, the trial court determined that Lemons had violated the terms of his probation and sentenced him to thirty-five years. He appealed the revocation.
While his appeal was pending, Lemons was tried on the murder charge. Because of inconsistent testimony at trial, the state filed a motion to dismiss the charges, which was granted. As a result, Lemons moved to supplement his revocation appeal with a transcript of the testimony from the murder trial. This court, in turn, entered a per curiam order remanding the revocation proceeding to the trial court for "a rehearing, or reexamination and re-evaluation of all relevant evidence." 306 Ark. 424, 814 S.W.2d 559. After considering this additional evidence, the trial court reaffirmed its original position and made specific findings that:
1. The condition with regard to firearms was violated. This finding is based upon the circumstantial evidence the Court finds to be credible.
2. The testimony and opinion of Dr. Michael Graham is decisive and supports the Court's previous finding that Defendant Lemons committed a homicide.
3. That either Dr. Malak made a mistake in judgment and his opinion, or gave his opinion based upon a tissue slide of another person through an error of laboratory personnel.
4. Dr. Beamer's opinion is given some weight although Dr. Beamer did not have the advantage of reviewing the necessary exhibits and materials that the other two (2) experts examined.
To revoke probation, the burden is on the state to prove the violation of a condition of probation by a preponderance of the evidence. See Ark.Code Ann. § 5-4-309 (1987); Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986); Pearson v. State, 262 Ark. 513, 558 S.W.2d 149 (1977). On appellate review, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Hoffman, supra. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for a probation revocation. Thus, the burden on the state is not as great in a revocation hearing. Since...
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Marcyniuk v. State, CR 09–634.
...of credibility and the weight to be given testimony, we defer to the trial judge's superior position in this regard. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). The police have a right to investigate and to ask investigatory questions; warnings are not required if the questioning ......
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Miner v. State
...beyond a reasonable doubt, but the burden of proof in a revocation proceeding is "by a preponderance of the evidence." Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Finally, speedy-trial rules vary between the two proceedings. Dority v. State, 329 Ark. 631, 951 S.W.2d 559 (1997). In......
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United States v. Ramos
...of the evidence, Ark. Code Ann. § 16–93–705(a)(6), the rules of evidence would not have strictly applied, Lemons v. Arkansas , 310 Ark. 381, 836 S.W.2d 861, 863 (1992), the Fourth Amendment exclusionary rule would not have strictly applied, Dabney v. Arkansas , 278 Ark. 375, 646 S.W.2d 4, 5......
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Thompson v. State, 00-562
...review the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient to support a criminal conviction may be sufficient to support a revocation. Id. Scope and a......