Lamb v. State, 00-1056

• Decision Date: 20 June 2001
• Docket Number: 00-1056
• Citation: 45 S.W.3d 869
• Parties: JIMMIE LAMB, APPELLANT, VS. STATE OF ARKANSAS, APPELLEE. CACR 00-1056 Arkansas Court of Appeals DIVISIONS I, II, and III 20 June 2001 APPEAL FROM ST. FRANCIS COUNTY CIRCUIT COURT, HONORABLE HARVEY L. YATES, CIRCUIT JUDGE, AFFIRMED. John E. Jennings, Judge. The sole issue in this revocation case is whether the evidence is sufficient to support the trial court's decision. We conclude that it is and affirm. In May 1999, Jimmie Lamb pled guilty to arson in the burning of a stolen truck. The St. Francis County Circuit Court suspended imposition of sentence for a period of five years. On
• Court: Arkansas Court of Appeals

JIMMIE LAMB, APPELLANT VS STATE OF ARKANSAS, APPELLEE

CACR 00-1056

Arkansas Court of Appeals DIVISIONS I, II, and III

20 June 2001

APPEAL FROM ST. FRANCIS COUNTY CIRCUIT COURT, HONORABLE HARVEY L. YATES, CIRCUIT JUDGE, AFFIRMED.

John E. Jennings, Judge.

The sole issue in this revocation case is whether the evidence is sufficient to support the trial court's decision. We conclude that it is and affirm.

In May 1999, Jimmie Lamb pled guilty to arson in the burning of a stolen truck. The St. Francis County Circuit Court suspended imposition of sentence for a period of five years. On February 7, 2000, the State filed a petition to revoke Lamb's suspended sentence, alleging that he had committed theft by receiving, a class B felony. At the hearing on the petition to revoke, Melva Edens testified that she was in the commercial contracting business and had been for twenty years. She lived in Germantown, Tennessee, and her business was located in Memphis. She testified that Mr.aLamb had been employed by her but was fired on May 10, 1999, for not reporting to work. She testified that a white 1991 Ford truck disappeared from her place of business on September 17, 1999. Lamb had driven this truck in connection with his employment with the company. Ms. Edens also testified that the truck had been washed inside and out in July and August of 1999.

Douglas Wall, a sergeant with the Forrest City Police Department, testified that on October 2, 1999, he located the stolen truck in a driveway of a vacant house on Brookside Drive in Forrest City. While waiting on a wrecker, he was approached by a man he knew, Alan Kimble, and from his conversation with Kimble, Mr. Lamb was developed as a suspect. Sergeant Wall testified that the truck was found one-half block from Mr. Lamb's parents' house and that Lamb sometimes stayed with them.

Dwight Duch, a Forrest City police officer, testified that Mr.aLamb's palm print was found on the inside of the passenger-side window of the stolen truck.

Mr. Lamb testified that he had been convicted of theft, burglary, and forgery dating back to 1989. He could not say how many felonies he had been convicted of but conceded that it was "too many." He testified that he had been in the truck since thedate he was fired "approximately twice." He testified he thought this was in September or October 1999. He testified that he had just been riding around in the truck, drinking beer, with two men connected with the company. Lamb admitted that he received his mail at his parents' house. He testified that he went to Memphis in October and stayed in a motel and would not come back to Forrest City during that time because he knew the police were looking for him.

On this evidence the trial court found that Lamb had violated the terms of his suspended sentence, revoked his probation, and sentenced him to ten years' imprisonment.

In a revocation proceeding the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence. Ark. Code Ann. § 5-4-309 (Supp. 1999). On appeal, the trial court's findings will be upheld unless they are clearly against a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. See Lemons v. State, 310 Ark. at 383. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge's superior position. Lemons, supra; Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151(1986). Circumstantial evidence may be sufficient to warrant revocation. See Needham v. State, 270 Ark. 131, 603 S.W.2d 412 (Ark. App. 1980).

While the evidence in the case at bar is circumstantial, we cannot conclude that the trial court's decision was clearly against a preponderance of the evidence. Mr. Lamb's own testimony places him in the stolen vehicle shortly before it was found within a block of his parents' home. Lamb's testimony that he went to Tennessee and stayed in a motel because he was aware the police were looking for him is also relevant. See Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). This is not a case where the trial court's judgment rests solely on the strength of a fingerprint.

For the reasons stated, the decision of the circuit court is affirmed.

Stroud, C.J., Robbins, Crabtree, Pittman, and Roaf, JJ., agree.

Griffen, Bird, and Vaught, JJ., dissent.

Wendell L. Griffen, Judge, dissenting.

The majority would affirm appellant's revocation based on testimony that appellant's palm print was found on the inside passenger window of the stolen truck, and despite testimony that appellant worked for the owners of the truck and had recently ridden in the truck. I respectfully dissent.

Our law is well established that defendants in a revocation hearing are not granted the full array of rights that accompany a criminal trial. See Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000). As we have often observed, revocation hearings only require that the State prove, by a preponderance of the evidence, that the defendant has violated a term or condition of probation. See Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Because of the different burden of proof, evidence that is not sufficient to sustain a criminal conviction may be sufficient to sustain a probation revoca tion. See Palmer v. State, 60...