Souksavanh Phommavong v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-107

September 7, 2005

SOUKSAVANH PHOMMAVONG AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

[CR00-1072; CR01-0168; CR01-0699]

V. HON. J. MICHAEL FITZHUGH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

WENDELL L. GRIFFEN, JUDGE

Souksavanh Phommavong appeals from the revocation of his suspended sentence. He argues that the State failed to prove that he violated the conditions of his suspended sentence by receiving stolen property. Because we find no merit in his argument, we affirm.

On July 25, 2001, appellant entered a guilty plea to charges of theft by receiving, residential burglary, and theft of property. He was ordered to serve two years in prison and received an eight-year suspended sentence, subject to certain terms and conditions, one of which was that he not violate any federal, state, or municipal law. The State filed a petition to revoke appellant's suspended sentence; it amended this petition on May 20, 2004, to allege that on February 28, 2003, appellant violated the terms and conditions of his suspended sentence by receiving stolen property. The property allegedly stolen was a 1998 Mitsubishi Eclipse.

The revocation hearing was held on August 18, 2004. The following evidence was adduced. Mike Mazaheri, the owner of Select Imports in Fort Smith, Arkansas, reported that a 1998 bright red Mitsubishi Eclipse was stolen from his dealership. He later thought thathe saw "an Asian guy" driving the car, but admitted that the person driving the car was not appellant. Mazaheri recognized the vehicle as his because the car had four holes in it that he had covered with plastic paint. He telephoned the police department and reported the license plate number on this vehicle.

Detective Chad Sutton of the Fort Smith Police Department investigated the theft. He checked the license plate, which was registered to Vinh and Mitsu Phommavong, members of appellant's family, who resided at 2000 North 13th Street in Fort Smith. Sutton knew that appellant resided at this address, and that the residence belonged to appellant's parents or sister. Sutton went to the North 13th Street address, but the vehicle was not there. Because Mazaheri had also told Sutton that he had seen the vehicle at 1206 South 41st Circle, Sutton investigated at that address, which was a duplex.

When Sutton arrived at the duplex, he saw a red Mistubishi Eclipse sitting in the driveway with no license plate. The owner of the premises, Bobby Stewart, permitted a search. Sutton noticed that the driver's door of the vehicle was a different color than the rest of the vehicle. The driver's side door came off when Sutton attempted to open it; Sutton saw that the vehicle identification number (VIN) had been removed from the door. A check of the VIN from the dashboard revealed that the vehicle belonged to Vinh and Mitsu Phommavong. Inside a closet in the garage, Sutton found a hood, some fenders, and other vehicle parts. These parts were determined to belong to the stolen Mitsubishi Eclipse. A search for fingerprints was conducted. Of the twelve fingerprints found, four fingerprints matched appellant's: one from the outside of the right fender; two from the driver's-door window, and one from the other driver's-side window. The remainder of the vehicle was found in Van Buren.

Rodney Stewart, another resident of South 41st Circle, testified that appellant and his brother brought the vehicle that was in the driveway of the duplex approximately two weeksto one month before the day the search was conducted. He described this car as a darker red or "maroonish." He saw appellant working on the car in an apparent attempt to get the car started, but he did not see appellant take any parts off of the car. Rodney further stated that he had seen appellant's brother driving what he termed the "stolen" vehicle, but had never seen appellant driving the "stolen" vehicle. Robert O'Leary, appellant's friend, testified that he had seen appellant in possession of an Eclipse, which O'Leary thought appellant owned.

After the State's case-in-chief, appellant moved to dismiss the petition to revoke on the ground that the only evidence linking him to the vehicle were his fingerprints and the fact that he had been seen driving a Mitsubishi vehicle that he owned. The trial court denied the motion and subsequently found that appellant had violated the terms of his suspended sentence. Appellant was sentenced to serve five years in the Arkansas Department of Correction, with an additional six-month suspended sentence. We affirm the trial court's order.

A circuit court may revoke a suspended sentence if it finds by a preponderance of the evidence that a defendant has inexcusably failed to comply with a condition of his suspension. Ark. Code Ann. § 5-4-309(d)(Supp. 2003). We will affirm the circuit court's revocation of a suspended sentence unless it is clearly against a preponderance of the evidence. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). A preponderance of the evidence means the greater weight of evidence. Meador v. State, 10 Ark. App. 325, 664 S.W.2d 878 (1984). It is the evidence which, when weighed with that opposed to it, has more convincing force and is more probably true and accurate. Id. Because the State must only show by a preponderance of the evidence that a defendant has inexcusably violated the conditions of his suspended sentence, evidence that is insufficient to support a criminal conviction may be sufficient to revoke a suspended sentence. Lamb, supra. Because the determination of a preponderance of the evidence turns on questions of credibility and theweight to be given to testimony, the appellate court defers to the trial judge's superior position to gauge these matters. Lamb, supra.

Theft by receiving occurs when a person acquires possession, control, or title of stolen property, knowing or having good reason to believe that the property was stolen. Ark. Code Ann. § 5-36-106(a)(b) (Supp. 2003). Appellant argues that the only evidence to connect him with the stolen vehicle is his fingerprints. He maintains that this is not sufficient circumstantial evidence, even on a preponderance standard, to show that he possessed the stolen vehicle. He contends that simply because a person's fingerprints are on the outside of a vehicle, that does not necessarily prove that the person possessed the vehicle. He further argues there is no evidence to indicate when his prints were placed on the vehicle or that he knew or should have known the vehicle was stolen. For support, he cites to Standridge v. State, 310 Ark. 408, 837 S.W.2d 447 (1992) (reversing the defendant's conviction for manufacture of marijuana where the only evidence to connect the defendant with the marijuana was an easily movable plastic cup containing the defendant's thumbprint, which was found beside a tent that was several feet from the marijuana plants). See also Holloway v. State, 11 Ark. App. 69, 666 S.W.2d 410 (1984) (holding that fingerprints on a piece of glass located outside of the house where a burglary occurred was not sufficient to sustain a burglary conviction).

Nonetheless, fingerprints, under some circumstances, may be sufficient to sustain a conviction. See, e.g., Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970) (affirming a burglary conviction where the defendant's fingerprints were found on large piece of broken glass inside of the building). Here, the State's evidence was sufficient, on a preponderance standard, to support that appellant violated the conditions of his suspended sentence by receiving a stolen vehicle. Despite appellant's assertion to the contrary, the instant case differs from Standridge, supra, and Holloway, supra, in that other circumstantial evidencein addition to appellant's fingerprints links him to the stolen goods. First, appellant's fingerprints were found on parts that were removed from the stolen Mitsubishi Eclipse vehicle. Second, these stolen parts were stored in close proximity to a Mitsubishi Eclipse that was purported to be owned and driven by appellant, which he and his brother had earlier delivered to the duplex garage where the stolen parts were found. Third, the driver's-side door to appellant's car had apparently been removed, because it had a door "attached" to it that was a different color than the rest of his car; this door had its VIN removed and fell off when the officer tried to open it. Fourth, one of the parts from the stolen vehicle that bore appellant's fingerprint was the driver's-side window. Fifth, appellant was seen working on his car at the duplex.

Finally, appellant's argument that he could have placed his prints on the vehicle without possessing the vehicle or knowing that it was stolen is similar to an argument rejected in the Ebsen case. There, the defendant presented evidence that he had been inside of the store on prior occasions and argued that he could have pressed his hands against the window on those occasions. As in Ebsen, here, the evidence does not support an alternative explanation. Accordingly, we affirm the trial court's order revoking appellant's suspended sentence.

Affirmed.

Glover and Roaf, JJ., agree.