Larry Matney v. State of Arkansas , 2022 Ark. App. 404 ( 2022 )

Cite as 2022 Ark. App. 404ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-22-68
Opinion Delivered October 19, 2022
LARRY MATNEY APPEAL FROM THE POINSETT
APPELLANT COUNTY CIRCUIT COURT
[NO. 56CR-18-320]
V.
HONORABLE CINDY THYER, JUDGE
STATE OF ARKANSAS AFFIRMED
APPELLEE
BART F. VIRDEN, Judge
The Poinsett County Circuit Court revoked the probation of appellant Larry Matney
after finding that he had violated the terms and conditions of his probation. He was
sentenced to six years’ imprisonment. Matney argues on appeal that the trial court erred in
revoking his probation because the State failed to prove that he committed fourth-degree
sexual assault. We affirm.
I. Background
In November 2019, Matney pleaded guilty to first-degree criminal mischief and was
placed on probation for a period of five years. One of the conditions of his probation was
that he must “obey all federal and state laws.” On February 5, 2021, the State filed a petition
to revoke and later amended the petition to allege, among other violations, that Matney had
committed two counts of fourth-degree sexual assault on February 3, 2021.
At a revocation hearing, the two victims testified to the following summary of events.
The girls, who were both fourteen years old, had a sleepover at the home of Minor Child 1’s
father on February 3. In the early morning hours, Minor Child 1’s cousin, Matney, came
into the bedroom where the girls were sleeping to ask whether either of them had a cell
phone. Both girls told Matney that they did not. Instead of leaving, Matney lay on the bed
with them. Minor Child 1 testified that Matney rubbed her “bottom” and tried to touch her
vagina and that she got up and went into the bathroom. Minor Child 2 testified that Matney
then rubbed her “bottom” and touched her breast and that she got up and joined Minor
Child 1 in the bathroom. Once the girls returned to the bedroom, Matney asked them
whether they were virgins and whether they wanted to have sex with him. Both declined,
and Matney eventually left.
II. Standard of Review
Pursuant to Ark. Code Ann. § 16-93-308(d) (Supp. 2021), a trial court may revoke a
defendant’s probation at any time prior to the expiration of the period of probation if it
finds by a preponderance of the evidence that the defendant has inexcusably failed to comply
with a condition of the probation. The State’s burden of proof in a revocation proceeding is
less than is required to convict in a criminal trial, and evidence that is insufficient for a
conviction may be sufficient for a revocation. Morgan v. State, 2020 Ark. App. 212, 599
S.W.3d 665. When the sufficiency of the evidence is challenged on appeal from an order of
revocation, the trial court’s decision will not be reversed unless its findings are clearly against
the preponderance of the evidence. Id. This court defers to the superior position of the trial
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court on determinations of credibility and weight to be given to the testimony. Gilbreth v.
State, 2020 Ark. App. 86, 596 S.W.3d 29.
III. Discussion
Matney argues that there was no evidence that he committed fourth-degree sexual
assault. Arkansas Code Annotated section 5-14-127(a)(1)(B) (Supp. 2021) provides that a
person commits sexual assault in the fourth degree if the person, being twenty years of age
or older, engages in sexual contact with another person who is less than sixteen years of age
and not the person’s spouse. “Sexual contact” means an act of sexual gratification involving
the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person
or the breast of a female. Ark. Code Ann. § 5-14-101(12)(A) (Supp. 2021).
On appeal, Matney does not specify any element of the offense that was not proved
by the State’s evidence; rather, he generally argues that there was no discussion, argument,
or evidence presented on the elements. According to Matney, the State effectively ignored
the elements by not identifying them for the trial court and addressing each one.
Although the State did not inform the trial court of the specific elements to prove
sexual assault in the fourth degree, this court has held that the trial court is presumed to
know and follow the law. Clinkscale v. State, 2018 Ark. App. 273, 550 S.W.3d 49. The trial
court was presented with sufficient evidence to find that Matney violated a condition of his
probation by committing fourth-degree sexual assault. The record shows that Matney’s
birthday is August 14, 1977, meaning that he was over the age of twenty on February 3,
2021. Mathis v. State, 2021 Ark. App. 49, 616 S.W.3d 274 (recognizing that a court may take
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judicial notice of its own record in the same case file). Moreover, both victims testified at the
hearing that they were fourteen years old on February 3. Minor Child 1 testified that Matney
is her cousin and that he rubbed her buttocks. Minor Child 2 testified that she first met
Matney on February 3 when he rubbed her buttocks and touched her breast. The
circumstances indicate that neither minor could be Matney’s spouse, and the trial court
expressly found both victims credible with respect to Matney’s actions. We cannot say that
the trial court’s decision to revoke Matney’s probation was clearly against the preponderance
of the evidence.
Further, Matney cites Ark. Code Ann. § 5-4-303(a) (Supp. 2021), which provides that,
if a court places a defendant on probation, the court shall attach such conditions as are
reasonably necessary to assist the defendant in leading a law-abiding life. Moreover, Matney
points to section 5-4-303(e)(2), which provides that the trial court shall give the defendant a
written statement explicitly setting forth the conditions under which he is being released.
Matney also relies on Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), for the proposition
that courts have no power to imply and subsequently revoke on conditions that were not
expressly communicated in writing.
Matney appears to be arguing that the terms and conditions of his probation did not
specifically advise him in writing that he may not commit fourth-degree sexual assault or that
he may not have sexual contact with minors who are not his spouse. The suggestion is that
the condition that he must “obey all federal and state laws” was insufficient to put him on
notice of what behavior is prohibited. Matney, however, signed the terms and conditions of
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his probation indicating that he understood what was required. Geeslin v. State, 2017 Ark.
App. 571, 533 S.W.3d 132. Moreover, we have no hesitation in holding that the condition
that Matney must “obey all federal and state laws” was sufficiently clear to inform him that
he must not commit another criminal offense.
Affirmed.
KLAPPENBACH and WHITEAKER, JJ., agree.
Terry Goodwin Jones, for appellant.
Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.
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