Lawayne Natt v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 01-500

October 31, 2001

LAWAYNE NATT APPEAL FROM GARLAND COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN HOMER WRIGHT

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

On June 5, 2000, appellant pled guilty to possession of a controlled substance and was placed on probation for five years. On August 18, 2000, the State filed a petition to revoke alleging that appellant had violated three conditions of his probation: (1) that he had committed the offense of theft by receiving; (2) that he had associated with a person who had a criminal record; and (3) that he had not paid court costs of $160.00 by July 5, 2000. After a hearing, the trial court found that appellant had violated allthree conditions of his probation. Therefore, the court revoked appellant's probation and sentenced him to four years in prison. On appeal, appellant contends that there is insufficient evidence to support the trial court's findings. We disagree and affirm.

On July 13, 2000, Patrolman Mark Reynolds stopped appellant as he was driving a black Ford pick-up truck that had no vehicle license. Officer Reynolds cited appellant for not having a license on the truck, for having no proof of insurance, and for driving on a suspended license. Officer Reynolds said that he ran the VIN number on the truck and that it came back that there was no record on State file. He said that he could have read off the number wrong, but that he had no information that the truck had been reported stolen. In any event, he released the appellant. Reynolds could not recall instructing appellant to find someone else to drive the truck because appellant had no license, but he said that it was his usual practice to do so.

Not long after this stop, Deputy Michael Samuelson came into contact with appellant who was then a passenger in the truck. Samuelson said that he saw the vehicle coming from behind a Shell station that was closed at that time of night. Samuelson stopped his vehicle and watched. He said that the truck took off when the occupants saw that they were being watched. Samuelson gave chase, and the truck came to a stop a short distance away in a parkinglot. The driver ran, while appellant remained at the truck. Officer Samuelson asked appellant why the driver had run and appellant replied, "I think he has warrants." The driver was later apprehended and identified as Craig Robinson, who had an extensive criminal record. Officer Samuelson ascertained that the truck had been stolen, and he arrested the appellant.

Appellant's probation officer also testified at the hearing. He said that appellant was required to pay court costs of $160.00 by July 5, 2000, as a condition of his probation. He said that appellant had failed to pay the costs by the required date.

Appellant admitted at the hearing that he had failed to pay his court costs on time, but he said that they had since been paid. Appellant testified that he did not know the truck had been stolen. He said that he had borrowed the truck for the purpose of moving furniture from a man named Donald, whose last name he could not recall, and that he had paid the man $40.00 for the use of the truck. Appellant further testified that he was not well-acquainted with Craig Robinson and that he had run into him shortly after being stopped by Officer Reynolds and that he had asked Robinson to drive because Officer Reynolds had advised him to get a licensed driver to drive the truck.

In revocation cases, the trial court must find by a preponder ance of the evidence that the defendant has failed to comply withthe conditions of his probation before it may be revoked. Farrelly v. State, 70 Ark. App. 158, 15 S.W.3d 699 (2000). On appellate review, the trial court's findings will be upheld unless they are clearly against the preponderance of the evidence. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). Since a determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the trial court's superior position to make those determinations. Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001).

Appellant first argues that his failure to pay the court costs on time cannot be used as a basis for revocation because the State did not show that his failure to pay was willful. However, once the State shows a probationer's failure to pay, the probationer bears the burden of going forward with some reasonable excuse for his failure to pay. Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998). Here, appellant conceded that he failed to pay court costs by the required date, and he offered no excuse at all to explain his failure to do so. Thus, it cannot be said that the trial court's finding is clearly erroneous. Id.

Appellant also argues that the evidence falls short of showing that he committed the offense of theft by receiving or that he associated with a person who had a criminal record. He argues that the State failed to show that he knew or had good reason to believethat the truck had been stolen. He also argues that he did not know Craig Robinson very well and did not know that he had a criminal record.

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing or having good reason to believe that the property was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 1997). However, an accused's unexplained possession of recently stolen property gives rise to a presumption that the accused knows or believes that the property is stolen and is prima facie evidence of guilt of theft by receiving. Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989). The reasonableness of the accused's explanation is a matter for the trier of fact to assess, and the trier of fact is free to accept such parts of the accused's testimony it believes to be true and to reject that which it believes to be false. See id. Here, the trial court was not required to believe appellant's explanation that he paid someone named "Donald" $40.00 to use the truck to move furniture. Likewise, the trial court did not have to believe appellant's testimony that he did not know Craig Robinson well and that he was unaware of Robinson's criminal history. We cannot say that the trial court's findings are clearly against the preponderance of the evidence.

Affirmed.

Stroud, C.J., and Hart, J., agree.