Caldwell v. State
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Cite as 2011 Ark. App. 358
ARKANSAS COURT OF APPEALS
DIVISION III
CACR 10-974
No.
Opinion Delivered
JUSTIN CURTIS CALDWELL
APPELLANT
May 11, 2011
V.
APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT,
FORT SMITH DISTRICT
[NO. CR-06-1499]
STATE OF ARKANSAS
HONORABLE JAMES O. COX,
JUDGE
APPELLEE
AFFIRMED
DOUG MARTIN, Judge
Appellant Justin Caldwell pled guilty on May 3, 2006, to one count of possession of
cocaine and one count of possession of marijuana. The Sebastian County Circuit Court
sentenced him to two-and-a-half years’ imprisonment with an additional seven-and-a-half
years’ suspended imposition of sentence (SIS). In addition, on March 2, 2007, Caldwell pled
guilty to one count of possession of cocaine with intent to deliver, one count of possession
of marijuana with intent to deliver, and possession of drug paraphernalia. At that time, the
circuit court sentenced him to ten years’ imprisonment in the Arkansas Department of
Correction with an additional ten years’ SIS. Caldwell was released from the Department of
Correction on February 23, 2009.
Cite as 2011 Ark. App. 358
On February 24, 2010, the State filed a petition to revoke Caldwell’s SIS, alleging that
he had committed the offense of theft by receiving in Sebastian County. After a revocation
hearing on June 8, 2010, the circuit court found that Caldwell had violated the terms and
conditions of his SIS, revoked his SIS, and sentenced him to ten years’ imprisonment in the
Arkansas Department of Correction. Caldwell filed a timely notice of appeal on June 28,
2010, and now argues that the State failed to show by a preponderance of the evidence that
he violated the terms and conditions of his SIS. We disagree and affirm.
In a probation-revocation hearing, the State must prove its case by a preponderance
of the evidence. Haley v. State, 96 Ark. App. 256, 240 S.W.3d 615 (2006); Smith v. State, 9
Ark. App. 55, 652 S.W.2d 641 (1983). To revoke probation or a suspension, the circuit court
must find by a preponderance of the evidence that the defendant inexcusably violated a
condition of that probation or suspension. Ark. Code Ann. § 5-4-309 (Repl. 2006); Rudd
v. State, 76 Ark. App. 121, 61 S.W.3d 885 (2001). The State bears the burden of proof, but
it need only prove that the defendant committed one violation of the conditions. Haley,
supra. When appealing a revocation, the appellant has the burden of showing that the trial
court’s findings are clearly against the preponderance of the evidence. Id. Evidence that is
insufficient for a criminal conviction may be sufficient for the revocation of probation or
suspended sentence. Id.; Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001). Since the
determination of a preponderance of the evidence turns on questions of credibility and the
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weight to be given testimony, we defer to the trial judge’s superior position. Peterson v. State,
81 Ark. App. 226, 100 S.W.3d 66 (2003).
Caldwell argues on appeal that the State failed to show by a preponderance of the
evidence that he violated the terms and conditions of his SIS. He urges that there was
insufficient evidence that he committed the offense of theft by receiving, in that there was
no proof that he knew or had good reason to know that the property was stolen. In addition,
Caldwell contends that the State failed to give him sufficient notice that the alleged violation
of the terms and conditions of his SIS occurred in Oklahoma, rather than in Arkansas.
As noted above, the offense underlying the revocation petition was that of theft by
receiving. A person commits the offense of theft by receiving if he “receives, retains, or
disposes of stolen property of another person: (1) knowing that the property was stolen; or
(2) having good reason to believe the property was stolen.” Ark. Code Ann. § 5-36-106(a)
(Repl. 2006). 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. § 5-36-106(c).
At the revocation hearing, the State’s first witness was Billy Wright, a resident of Fort
Smith. Wright testified that, on September 25, 2009, he had a car for sale that he had parked
in a lot next to a bus being offered for sale by Clarence Smith. About ten or eleven o’clock
that morning, Wright saw four men “messing around with the bus and the car.” Wright
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explained that one man was under the bus “like he was trying to loosen the brakes up,
beating around on it underneath it.” He was concerned, so he drove over and spoke to one
of the men, whom Wright identified at the hearing as Caldwell. Caldwell asked Wright who
owned the bus, and Wright told him. Wright left but came back a few hours later, and the
bus was gone; when he came back again, the bus was there; and when he drove by one more
time, the bus was gone. Before leaving the stand, Wright identified a photograph of the bus.
Clarence Smith, who described himself as a private investigator, also identified the
same photograph of the bus. Smith testified that he purchased the bus from the First
Assembly of God Church in Van Buren and was looking to sell it for $5,500. He realized the
next day that the bus was missing, along with approximately 21,000 pounds of steel that he
had been planning to use on a home-improvement project. Smith filed a police report but
also did some investigating on his own.
Mark Lewallen of Yaffe Iron and Metal testified that, on September 25, 2009, he
purchased a school-bus body for scrap for $585. Lewallen explained that when a person
selling scrap metal to Yaffe is ready to be paid, that person will provide Yaffe with a driver’s
license, which is swiped through a card reader that scans the information on the license and
uploads it to the computer. Lewallen said that he would look at the picture on the license,
make sure it is the person who handed over the identification, have the person sign the
ticket, and then pay the person. If this procedure was not followed, Lewallen said, the
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computer would not let him continue with the transaction. Through Lewallen, the State
introduced a purchase ticket bearing the signature of Justin Caldwell.
Lewallen said on cross-examination that he remembered the day in question because
“they had a lot of trouble getting the tires off of the bus.” When asked who “they” were,
Lewallen stated that there were three people who brought the bus in; of those three people,
the one who presented the driver’s license to complete the transaction was “sitting right over
there” at counsel table, he said, identifying Caldwell. Lewallen said he also recognized
Caldwell because Caldwell had concluded perhaps three or four previous transactions with
Yaffe.
On redirect, Lewallen identified a picture of the remnants of the bus, noting that he
remembered it because they did not get many buses at Yaffe. On recross, Lewallen explained
that Yaffe’s office is on Wheeler Avenue in Fort Smith, although the company’s shredding
site was across the state line in Arkoma, Oklahoma.
On this evidence, the court found by a preponderance of the evidence that Caldwell
had committed the offense of theft by receiving. On appeal, Caldwell argues that there was
no evidence demonstrating that he knew that the property he sold to Yaffe Iron and Metal
was stolen, nor was there evidence that he acquired the property for consideration known
to be far below the property’s reasonable value. He asserts that the evidence showed that the
scrap value of the bus was what it was worth at the time, and he argues that the fact that he
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sold a bus for the amount that it was worth is insufficient to demonstrate that he knew or had
good reason to know that the property he was selling was stolen.
There is no merit to Caldwell’s argument. As noted above, section 5-36-103(a)
provides that the “unexplained possession or control by the person of recently stolen
property” gives rise to a presumption that the person knows or believes the property was
stolen. As the State points out, at about ten or eleven o’clock in the morning on
September 25, 2009, Caldwell was informed that Clarence Smith owned the bus, but,
according to the purchase ticket, Caldwell sold the bus for scrap shortly after one o’clock
p.m. that day, and no evidence indicates how or why Caldwell would be in possession of a
bus that Smith reported stolen. Thus, there was clearly sufficient evidence from which the
circuit court could find by a preponderance of the evidence that Caldwell committed the
offense of theft by receiving.
In a second argument, Caldwell asserts that the revocation petition alleged that the
offense of theft by receiving occurred in Arkansas, but the evidence presented at trial
“indicated that the bus, at the time of the sale, was located in Arkoma, which is Oklahoma.”
He argues that he was “given no notice that the alleged violation of the terms and conditions
of the suspended [imposition of] sentence occurred in Oklahoma rather than in Arkansas”
and that to allow the revocation to be upheld “based upon allegations that are not alleged in
the petition would amount to a violation of the appellant’s due process rights.”
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Cite as 2011 Ark. App. 358
Caldwell’s argument is not preserved for appeal. At no point during the revocation
hearing did he raise the issue posed in his brief on appeal. In moving for directed verdict,
Caldwell stated only the following:
Your Honor, we would move for directed verdict on the case. And, Your
Honor, the basis would be insufficient evidence that a theft by receiving was
committed. Your Honor, the evidence presented in this case was there was an item
that belonged to the Assembly of God Church and Carol Smith [Clarence Smith’s
wife]. We would move for directed verdict of acquittal based upon that, lack of the
evidence to establish that.
Moreover, during his closing arguments, Caldwell never mentioned the scrapping of the
vehicle in Oklahoma, the alleged lack of notice in the revocation petition, or his due-process
rights.
It is axiomatic that the appellate court will not address an argument, even a
constitutional one, that is raised for the first time on appeal. Rhodes v. State, 2011 Ark. 146
(declining to consider a due-process argument because the argument had not been articulated
to the circuit court); Rogers v. State, 2011 Ark. App. 2 (holding that a constitutional dueprocess argument must be raised before the circuit court to preserve the argument for appeal
and thus declining to address the merits of appellant’s due-process argument on appeal).
Because Caldwell has failed to preserve this argument for review, we do not address it.
Affirmed.
HART and GRUBER, JJ., agree.
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