Jimmie Lee Simpson v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-108

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

JIMMY LEE SIMPSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-108

October 12, 2005

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[CR-96-90]

HON. DAVID N. LASER,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

On February 13, 1996, Jimmy Simpson entered a conditional plea of guilty to the charges of burglary and theft, both class B felonies. He received a sentence of twenty years' suspended imposition of sentence on each charge. The suspended imposition was subject to certain terms and conditions, including a "good behavior" requirement. After a traffic stop revealed that Simpson was driving a stolen vehicle, the State filed a petition to revoke his suspended sentence, alleging that Simpson had failed to maintain good behavior. The trial court agreed, revoked Simpson's prior suspended sentence, and ordered Simpson to serve ten years in the Arkansas Department of Correction on each count, with the sentences to run concurrently. On appeal Simpson argues that the trial court's decision to revoke his suspended sentence should be reversed because the decision was not supported by the evidence. We disagree and affirm.

According to the evidence presented by the State during the revocation hearing, on July 12, 2004, Randy Marotti delivered his teal-green 1996 Mazda MX-6 to Jerry's Auto Repair in West Memphis, Arkansas, for paint work. The next day, Marotti's sister-in-law notified him that someone from Jerry's was attempting to contact him. Marotti returned to Jerry's and learned that the business had been broken into and that during the break-in his car had been stolen.

Jerry Simmerson, the owner of Jerry's, testified that he worked in his shop until about 12:30 a.m. on the morning of July 13, 2004, and then he left the business locked up for the night. When he arrived at the shop the following morning, he discovered that someone had gained access to his shop and that Marotti's car was missing. Both Marotti and Simmerson reported the matter to the police.

At about 3:00 a.m. on July 19, 2004, Officer Anthony Hampton, a West Memphis police officer, witnessed a teal-green Mazda MX-6 run a stop sign. Officer Hampton conducted a traffic stop and discovered that the vehicle was driven by Simpson and that the National Crime Information Center had received a report indicating that the car had been reported stolen. After confronting Simpson with this information, according to Officer Hampton, Simpson responded that he was staying at a local motel and had borrowed the car. Officer Hampton asked Simpson for his room number. However, after calling all local motels, Officer Hampton discovered that no motel had a room assigned with that number.

Subsequent to the traffic stop, West Memphis Police Detective William Smith, who had taken the initial reports from Marotti and Simmerson, visited Simpson's home and discovered another car that had been reported stolen parked in the front of the residence.

Based on the facts, the trial court concluded that Simpson had indeed violated the terms and conditions of his suspended imposition of sentence. In turn, the court revoked Simpson's prior suspension, and it is from this decision that Simpson appeals. Specifically, Simpson argues that the evidence supplied by the State was insufficient to support a finding that he had violated a term or condition of his suspended imposition of sentence.

On appeal, we will not reverse a trial court's decision to revoke a suspended sentence unless the decision is clearly against the preponderance of the evidence. Williams v. State, 351 Ark. 229, 91 S.W.3d 68 (2002). Because the preponderance of the evidence determination turns heavily on questions of credibility and the weight to be afforded live testimony, we defer to the trial court's superior position to make those determinations. Id. Moreover, evidence that may be insufficient to support a criminal conviction may nonetheless be adequate to support a decision to revoke. Id.

Here, Simpson claims that the trial court's decision to revoke was improper because he offered an explanation for his possession of the stolen car-that he borrowed it. Although Simpson concedes that the "unexplained possession or control by a person of recently stolen property ... shall give rise to a presumption that he or she knows or believes that the property was stolen," he insists that because he offered a reasonable explanation for his possession, the presumption is rebutted. See Ark. Code Ann. ยง 5-36-106(c) (Repl. 1997). He is correct that, according to the statute, a reasonable explanation may be sufficient to rebut the presumption; however, whether the explanation is reasonable is a question to be resolved by the trier of fact. See Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989) (noting that the reasonableness of the defendant's explanation is a matter for the jury to assess).

Here, the trial court-sitting as trier of fact-was free to discount the potentially self-serving explanation offered by Simpson because as the accused he was the person with the greatest interest in the outcome of the hearing. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). An equally reasonable explanation-if not a more reasonable explanation than Simpson's unprovable account of a motel stay and borrowing the car-is that Simpson knowingly possessed a stolen vehicle in contravention to the terms andconditions of his suspended sentence. Accordingly, because the trial court's revocation decision was not clearly against the preponderance of the evidence, we affirm.

Affirmed.

Griffen and Roaf, JJ., agree.