Fellows v. State , 2014 Ark. App. 85 ( 2014 )

Cite as 2014 Ark. App. 85
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-211
Opinion Delivered February 12, 2014
ROBERT LEE FELLOWS APPEAL FROM THE HEMPSTEAD
APPELLANT COUNTY CIRCUIT COURT
[NOS. CR-2009-143-1; CR-2009-171-
1; CR-2009-172-1; CR-2011-17-2; CR-
V. 2012-8-1]
HONORABLE WM. RANDAL
WRIGHT, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
Robert Lee Fellows appeals from the revocation of multiple probations, which resulted
in a sentence of fifty years’ imprisonment. He contends that the trial court clearly erred in
finding that he violated the conditions of his probations. We affirm.
Appellant’s conditions of probation required him to refrain from committing any crime
punishable by imprisonment. The record shows that, while on probation, appellant was in
possession of many high-grade speakers that had been stolen from a semi-trailer kept in the
Klipsch Speaker factory yard. He pawned some of these speakers, appearing at the point of
sale in a small red truck like the one seen on security cameras near the trailer around the time
of the theft, explaining to the pawnshop owner that the speakers were part of the equipment
of a failed music club that he was liquidating. Other speakers were sold to a hardware store
owner, John Odom. Investigator Heath Ross of the Hempstead County Sheriff’s Department
Cite as 2014 Ark. App. 85
testified that appellant told him that he found all of the speakers under a tree behind the
handle mill and that there were more speakers still under the tree. Investigator Ross went to
the tree behind the handle mill and found no speakers.
Appellant raises two sufficiency arguments on appeal: (1) that the trial judge erred by
refusing to dismiss the petition to revoke on the ground that there was no evidence to show
that appellant was knowingly in possession of stolen property; and (2) that there was no
evidence to show that appellant was financially able to pay the unpaid fines and fees. Because
the trial court expressly stated that he would probably not have revoked appellant’s probations
if he had simply failed to pay fines and fees, and because a single violation is sufficient to
support a revocation, we need only address the first issue.
In order to revoke a probation or suspension, the circuit court must find by a
preponderance of the evidence that the defendant inexcusably violated a condition of that
probation or suspension. Holmes v. State, 2012 Ark. App. 451. The State bears the burden
of proof but need only prove that the defendant committed one violation of the conditions.
Id. Because the burden of proof in a revocation proceeding is less than that required to
convict in a criminal trial, evidence that is insufficient for a conviction may be sufficient for
a revocation. Phengthavy v. State, 2013 Ark. App. 732. We do not reverse a circuit court’s
findings on appeal unless they are clearly against the preponderance of the evidence. Id.
A person commits the offense of theft by receiving if he receives, retains, or disposes
of stolen property of another person knowing that the property was stolen or having good
reason to believe the property was stolen. Ark. Code Ann. § 5-36-106(a) (Supp. 2013). The
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Cite as 2014 Ark. App. 85
unexplained possession or control of stolen property gives rise to a presumption that a person
knows or believes that the property was stolen. Ark. Code Ann. § 5–36–106(c)(1) (Supp.
2013); see Turner v. State, 2012 Ark. App. 150, 391 S.W.3d 358 (possession of stolen property
not satisfactorily explained to the trier of fact is sufficient to sustain a conviction of theft by
receiving).
The existence of criminal intent or purpose—here, knowledge or belief that the
speakers were stolen—is a question for the fact-finder when the evidence shows facts from
which it may be reasonably inferred. Atkins v. State, 63 Ark. App. 203, 979 S.W.2d 903
(1998). Furthermore, a fact-finder may consider and give weight to any false, improbable,
and contradictory statements made by an accused in an effort to explain suspicious
circumstances. Walker v. State, 313 Ark. 478, 855 S.W.2d 932 (1993). Here, the trial court
clearly found appellant’s explanation to Investigator Ross to be unsatisfactory and
improbable, saying that the credible evidence put appellant at
the scene of at least violating the law, selling stolen property, no question. I mean,
to consider any other scenario of reasonableness, the court would have to consider
that there is a speaker fairy that comes down and dumps speakers upon the lands of
Hempstead County so we could take them and sell them. That’s just not—you know
that’s not plausible, that’s not even happening, that could not happen.
On this record, we cannot say that the trial court clearly erred in finding that appellant knew
or believed that the speakers were stolen.
Affirmed.
WALMSLEY and HIXSON, JJ., agree.
Anthony S. Biddle, for appellant.
Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.
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