Tony M. Mata v. State of Arkansas

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ar04-917

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

TONY M. MATA

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-917

March 23, 2005

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

[CR-02-1099]

HONORABLE JAMES ROBERT

MARSCHEWSKI, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

On April 15, 2003, Tony Mata pleaded guilty to theft of property, a Class C felony, and the trial court suspended imposition of sentence for a period of five years. One of the conditions of the suspended imposition of sentence required that Mata not violate any federal, state, or municipal laws. On January 12, 2004, the State filed a petition to revoke Mata's suspended imposition of sentence on the basis that he committed the offense of theft by receiving on January 6, 2004. After a hearing, the trial judge revoked Mata's suspended sentence and sentenced him to the Arkansas Department of Correction for a period of five years. Mata now appeals, arguing that there was insufficient evidence presented to show that he had violated the terms and conditions of his suspended sentence. We affirm.

In revocation proceedings, it is the State's burden to prove by a preponderance of the evidence that the defendant has violated a condition of his suspension. Jones v. State, 52 Ark. App. 179, 916 S.W.2d 766 (1996). Where the sufficiency of the evidence is challenged on appeal from an order of revocation, we will not reverse the trial court's decision unless its findings are clearly against the preponderance of the evidence. Id. Evidence that is not sufficient to support a criminal conviction may be sufficient to support a revocation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Circumstantial evidence may be sufficient to support a revocation. Id. In making our review, this court defers to the superior position of the trial court to determine questions of credibility and the weight to be given to the evidence. Jones, supra.

In the present case, Rodney Ledbetter, a support manager at Wal-Mart in Fort Smith, testified that on January 6, 2004, Mata came to the store's service desk inquiring about a power cord to go with the laptop computer he brought in with him. The service-desk employee called Ledbetter to the front of the store to look at the computer because a laptop computer with a retail price of $998 had been stolen from that Wal-Mart store about five days to one week earlier. Ledbetter testified that the laptop computer had originally been packaged in a large box, and that the box contained smaller boxes that held accessories for the computer; when the computer was taken from the store, both the larger box as well as the smaller boxes containing the accessories were left behind in the store.

Ledbetter said that he asked Mata how he got the computer, and Mata told him that he had purchased it at that Wal-Mart in December; however, Ledbetter testified that Wal-Mart had no record of the computer being sold. Under the pretense of helping Mata, Ledbetter took the computer and compared its serial number to the box of the one that was previously stolen from the store; the serial numbers matched exactly. Ledbetter's superior called the police, and Ledbetter went to the front of the store again to stall Mata until the police arrived. Ledbetter said that when the police arrived, Mata was extremely nervous and sweating, and that Mata stated that he felt like Ledbetter and the police thought that he had stolen the computer. Ledbetter testified that after the police arrived, Mata still insisted that he had purchased the computer at Wal-Mart in December. However, when they went back to the office, Mata changed his story, saying instead that he had bought the computer from a guy at a local bar for one hundred dollars.

Stacy Moss, an assistant manager at Wal-Mart, testified that her support manager contacted her on January 6, 2004, to tell her that he thought Mata had come into the store with the computer that had been stolen approximately one week earlier. She said that she personally compared the serial number for the computer that had been stolen to the computer Mata brought into the store, and that the serial number matched. She was present when Mata told the police that he had purchased the computer from a man at a bar. Moss testified that Mata was calm until the police arrived at the store.

Joe Barnes of the Fort Smith Police Department testified that when he questioned Mata about the laptop computer, Mata told him that he had bought the computer from a guy named Jack Dinwiddie at Suzie-Q's bar in Fort Smith for one hundred dollars. Barnes stated that he arrested Mata for theft by receiving.

Tony Mata testified on his own behalf. He stated that a person at Suzie-Q's Bar was trying to sell a laptop computer and that he bought it from him for one hundred dollars. Mata said that the individual told him that he had gotten the computer at the fairgrounds "when this special deal came in." He said that the individual did not have the cord or battery pack, and that without the accessories, the laptop was "not worth anything" because he could not use it. He denied that he told Rodney Ledbetter that he bought the computer at Wal-Mart in December.

Shellie Johnson testified that she was in Suzie-Q's Bar in January when someone tried to sell her a computer first for two hundred fifty dollars, and then for one hundred dollars. Johnson said that Mata told her that he bought the computer, but that she did not see him buying it. She also testified that she thought it was suspicious for an individual to be trying to sell a computer in a bar.

Arkansas Code Annotated section 5-36-106 (Supp. 2003) provides, in pertinent part:

(a) A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.

(b) For purposes of this section, "receiving" means acquiring possession, control, or title or lending on the security of the property.

(c) The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he or she knows or believes that the property was stolen.

(Emphasis added.) "A person may be found guilty of theft by receiving if he is knowingly in possession of stolen property, even without proof that he took the property himself or acquired it from the actual thief." Doubleday v. State, 84 Ark. App. 194, 198, 138 S.W.3d 112, 115 (2003).

In this case, both Rodney Ledbetter and Stacy Moss testified that the serial number on the computer Mata possessed matched the serial number for the computer that was taken a few days earlier from the Wal-Mart store. Although Mata initially said that he had purchased the computer from Wal-Mart, he later stated that he had purchased it from an individual at a bar for one hundred dollars. This amount was far below the retail price of the computer, which Ledbetter testified was almost one thousand dollars. The trial judge's decision to revoke Mata's suspended sentence was not clearly against the preponderance of the evidence. Affirmed.

Bird and Roaf, JJ., agree.