Phillip Andre Milner v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
LARRY D. VAUGHT, JUDGE
DIVISION II
CACR07691
December 19, 2007
PHILLIP ANDRE MILNER
APPELLANT
V.
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
[CR20061149, CR20064474]
HON. JOHN W. LANGSTON,
CIRCUIT JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Appellant Phillip Milner appeals from orders entered by the trial court finding him
guilty of theft by receiving, a Class C felony, and revoking his probation based on the
conviction. He argues that the trial court erred in failing to grant his motions for directed
verdict. We disagree and affirm.
At Milner’s bench trial on the theftbyreceiving charge, Little Rock Police Officer
Matthew Hoyle testified that in October 2006 he was on patrol with another officer when he
observed a man on an orange scooter run a stop sign. Officer Hoyle testified that after the
man on the scooter saw Hoyle’s patrol car, the man drove between two closely parked
construction vehicles, preventing the patrol car from following him. After asking a
construction worker to move one of the vehicles, Officer Hoyle was able to catch up with the
man on the scooter, at which time Officer Hoyle witnessed the man run a second stop sign.
At that point, Officer Hoyle conducted a traffic stop.
Officer Hoyle identified the man on the scooter as Milner. Officer Hoyle also
observed that the ignition of the scooter was damaged and had no key in it. The officer
conducted a patdown for safety and discovered a bill of sale for the scooter in Milner’s
pocket. The bill of sale did not list Milner as the owner. Officer Hoyle asked Milner if he
knew who the owner of the vehicle was, and Milner responded that he did not. Officer Hoyle
then contacted the owner listed on the bill of sale, Joseph Brown, who confirmed that his
scooter had been stolen the day before.
Brown testified that he purchased the orange scooter in August 2006. He paid $1600
for it and was still making payments in October 2006 when it was stolen. Brown testified that
when the scooter was stolen from him it was in “mint condition.” However, when the scooter
was returned to him the head light was broken, the ignition switch was destroyed, and the
seat was damaged. Brown explained that he stored the bill of sale in a compartment
underneath the seat. Brown testified that the seat compartment was locked when the scooter
was stolen. Finally, Brown testified that he did not know Milner and did not give permission
to him to operate the scooter.
Milner moved for directed verdict at trial, challenging the sufficiency of the evidence.
The trial court denied Milner’s motions and found Milner guilty of theft by receiving. Three
days later, the parties appeared before the trial court on the State’s petition to revoke
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Milner’s probation. The State offered the testimony of two of Milner’s probation officers.
These probation officers testified that they, on separate occasions, read the conditions of
probation to Milner and that Milner, in July 2006 and August 2006, signed different
statements verifying that he understood the conditions. Thereafter, the parties stipulated to
the admission of the testimony that was taken during the theftbyreceiving trial. At the
conclusion of the revocation hearing, the trial court found that Milner wilfully violated the
conditions of his probation by committing the offense of theft of property, and revoked
Milner’s probation. On appeal, Milner challenges the trial court’s denial of his motions for
directed verdicts on the theftbyreceiving conviction and the trial court’s revocation of his
probation based upon the conviction.
Regarding Milner’s first point on appeal, a directedverdict motion is a challenge to
the sufficiency of the evidence. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002).
When the sufficiency of the evidence is challenged, we consider only the evidence that
supports the verdict, viewing the evidence in the light most favorable to the State. Slater, 76
Ark. App. at 369, 65 S.W.3d at 484. The test is whether there is substantial evidence to
support the verdict, which is evidence that is of sufficient force and character that it will,
with reasonable certainty, compel a conclusion one way or another. Id. Resolution of
conflicts in testimony and assessment of witness credibility is for the factfinder. Id.
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Milner was on probation after pleading guilty to burglary and theftofproperty
charges that arose on September 27, 2005.
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A person commits the offense of theft by receiving if he receives, retains, or disposes
of stolen property of another person, knowing that it was stolen or having good reason to
believe it was stolen. Ark. Code Ann. § 536106(a) (Repl. 1997). 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 knows or believes that the property was stolen. Ark. Code Ann. §
536106(c).
Milner argues that because the State failed to offer into evidence photographs of the
scooter, it was impossible to determine whether the condition of the scooter would have
revealed that Milner “[knew] that it was stolen or [had] good reason to believe it was stolen.”
Accordingly, argues Milner, the trial court had to resort to speculation and conjecture to find
Milner guilty.
In response, the State contends that there was sufficient evidence demonstrating that
Milner knew or should have known that the scooter he was operating was stolen. For
example, there was testimony from Officer Hoyle that Milner, once he knew he was being
observed by the police, acted suspiciously by trying to evade the officers. Officer Hoyle
testified that upon viewing the scooter, he immediately noticed that the ignition switch was
damaged and that there was no key in the ignition, but that the scooter’s engine was running.
Although Milner had the bill of sale in his pocket, it did not list his name as the owner, and
Milner had no idea who the owner was. The owner of the scooter, Brown, testified that the
scooter had been stolen from him the day before and that he did not give Milner permission
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to operate it. Brown further testified that the scooter was in mint condition prior to the theft,
but after it was returned to him there were multiple items on the scooter that were obviously
damaged. Finally, according to Brown, the only way for anyone to have obtained the bill of
sale was to break open the locked seat compartment.
Based on our review of the record, we agree with the State that there was sufficient
evidence to support the trial court’s finding that Milner knew or should have known that the
scooter was stolen. Accordingly, we affirm the trial court’s finding that Milner was guilty
of Class C felony theft by receiving.
Milner’s second point on appeal is that the trial court erred in revoking his probation
based upon the conviction. Milner makes the same argument he made for his first point on
appeal—that there was insufficient evidence supporting the theftofproperty conviction, and
therefore revocation based on that conviction was error.
To revoke probation, the burden is on the State to prove the violation of a condition
of probation by a preponderance of the evidence. Cheshire v. State, 80 Ark. App. 327, 95
S.W.3d 820 (2003). On appeal, the trial court’s findings will be upheld unless they are
clearly against the preponderance of the evidence. Cheshire, 80 Ark. App. at 330, 94 S.W.3d
at 822. Because the determination turns on questions of credibility and weight to be given
testimony, we defer to the trial judge’s superior position. Id.
The burden of proof in a probationrevocation case—proof by a preponderance of the
evidence—is less than the State’s burden of proof required in a criminal case—proof beyond
a reasonable doubt. See Jones v. State, 355 Ark. 630, 144 S.W.3d 254 (2004) (recognizing
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that the burdens of proof are different in criminal and probationrevocation cases, and
therefore, evidence that is insufficient for a criminal conviction may be sufficient for
revocation of probation or suspended sentence). Because we hold that the State met its
burden in the theftbyreceiving case, we necessarily hold that the State met its burden of
proof in the probationrevocation case and affirm.
Affirmed.
MARSHALL and MILLER, JJ., agree.
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