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ARKANSAS COURT OF APPEALS DIVISION I No. CR-13-211

Opinion Delivered February 12, 2014

ROBERT LEE FELLOWS APPEAL FROM THE HEMPSTEAD APPELLANT COUNTY CIRCUIT COURT [NOS. CR-2009-143-1; CR-2009-171- 1; CR-2009-172-1; CR-2011-17-2; CR- V. 2012-8-1]

HONORABLE WM. RANDAL WRIGHT, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

JOHN MAUZY PITTMAN, Judge

Robert Lee Fellows appeals from the revocation of multiple probations, which resulted

in a sentence of fifty years’ imprisonment. He contends that the trial court clearly erred in

finding that he violated the conditions of his probations. We affirm.

Appellant’s conditions of probation required him to refrain from committing any crime

punishable by imprisonment. The record shows that, while on probation, appellant was in

possession of many high-grade speakers that had been stolen from a semi-trailer kept in the

Klipsch Speaker factory yard. He pawned some of these speakers, appearing at the point of

sale in a small red truck like the one seen on security cameras near the trailer around the time

of the theft, explaining to the pawnshop owner that the speakers were part of the equipment

of a failed music club that he was liquidating. Other speakers were sold to a hardware store

owner, John Odom. Investigator Heath Ross of the Hempstead County Sheriff’s Department Cite as

testified that appellant told him that he found all of the speakers under a tree behind the

handle mill and that there were more speakers still under the tree. Investigator Ross went to

the tree behind the handle mill and found no speakers.

Appellant raises two sufficiency arguments on appeal: (1) that the trial judge erred by

refusing to dismiss the petition to revoke on the ground that there was no evidence to show

that appellant was knowingly in possession of stolen property; and (2) that there was no

evidence to show that appellant was financially able to pay the unpaid fines and fees. Because

the trial court expressly stated that he would probably not have revoked appellant’s probations

if he had simply failed to pay fines and fees, and because a single violation is sufficient to

support a revocation, we need only address the first issue.

In order to revoke a probation or suspension, the circuit court must find by a

preponderance of the evidence that the defendant inexcusably violated a condition of that

probation or suspension. Holmes v. State,

. The State bears the burden

of proof but need only prove that the defendant committed one violation of the conditions.

Because the burden of proof in a revocation proceeding is less than that required to

convict in a criminal trial, evidence that is insufficient for a conviction may be sufficient for

a revocation. Phengthavy v. State,

. We do not reverse a circuit court’s

findings on appeal unless they are clearly against the preponderance of the evidence.

A person commits the offense of theft by receiving if he receives, retains, or disposes

of stolen property of another person knowing that the property was stolen or having good

reason to believe the property was stolen.

(a) (Supp. 2013). The

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unexplained possession or control of stolen property gives rise to a presumption that a person

knows or believes that the property was stolen. Ark. Code Ann. § 5–36–106(c)(1) (Supp.

2013); see Turner v. State,

,

(possession of stolen property

not satisfactorily explained to the trier of fact is sufficient to sustain a conviction of theft by

receiving).

The existence of criminal intent or purpose—here, knowledge or belief that the

speakers were stolen—is a question for the fact-finder when the evidence shows facts from

which it may be reasonably inferred. Atkins v. State,

,

(1998). Furthermore, a fact-finder may consider and give weight to any false, improbable,

and contradictory statements made by an accused in an effort to explain suspicious

circumstances. Walker v. State,

,

(1993). Here, the trial court

clearly found appellant’s explanation to Investigator Ross to be unsatisfactory and

improbable, saying that the credible evidence put appellant at

the scene of at least violating the law, selling stolen property, no question. I mean, to consider any other scenario of reasonableness, the court would have to consider that there is a speaker fairy that comes down and dumps speakers upon the lands of Hempstead County so we could take them and sell them. That’s just not—you know that’s not plausible, that’s not even happening, that could not happen.

On this record, we cannot say that the trial court clearly erred in finding that appellant knew

or believed that the speakers were stolen.

Affirmed.

WALMSLEY and HIXSON, JJ., agree. Anthony S. Biddle, for appellant. Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for appellee.

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