{ "id": 6140494, "name": "Jimmie LAMB v. STATE of Arkansas", "name_abbreviation": "Lamb v. State", "decision_date": "2001-06-20", "docket_number": "CA CR 00-1056", "first_page": "245", "last_page": "249", "citations": [ { "type": "official", "cite": "74 Ark. App. 245" }, { "type": "parallel", "cite": "45 S.W.3d 869" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "342 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342437 ], "weight": 2, "year": 2000, "opinion_index": 0, "case_paths": [ "/ark/342/0045-01" ] }, { "cite": "603 S.W,2d 412", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1709287 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0134-01" ] }, { "cite": "270 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709211 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0131-01" ] }, { "cite": "289 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875372 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0184-01" ] }, { "cite": "310 Ark. 381", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1898834 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "383" } ], "opinion_index": 0, "case_paths": [ "/ark/310/0381-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-4-309", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1999, "opinion_index": 0 }, { "cite": "57 Ark. App. 99", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137685 ], "weight": 3, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark-app/57/0099-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-36-106", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 1 }, { "cite": "60 Ark. App. 97", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137450 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/60/0097-01" ] }, { "cite": "64 Ark. App. 108", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137750 ], "weight": 2, "year": 1998, "opinion_index": 1, "case_paths": [ "/ark-app/64/0108-01" ] }, { "cite": "342 Ark. 283", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1342381 ], "weight": 2, "year": 2000, "opinion_index": 1, "case_paths": [ "/ark/342/0283-01" ] } ], "analysis": { "cardinality": 549, "char_count": 9418, "ocr_confidence": 0.775, "pagerank": { "raw": 3.053228916518371e-07, "percentile": 0.856084659762017 }, "sha256": "677ab94bcb32d529051174e5825babff23d2099a9d6b5941f0f8635a34056607", "simhash": "1:c5efcab802085b4a", "word_count": 1602 }, "last_updated": "2023-07-14T22:49:19.158843+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud, C.J., Robbins, Crabtree, Pittman, and Roaf, JJ\u201e agree.", "Griffen, Bird, and Vaught, JJ., dissent." ], "parties": [ "Jimmie LAMB v. STATE of Arkansas" ], "opinions": [ { "text": "John E. JENNINGS, Judge.\nThe sole issue in this revocation case is whether the evidence is sufficient to support the trial court\u2019s decision. We conclude that it is and affirm.\nIn May 1999, Jimmie Lamb pled guilty to arson in the burning of a stolen truck. The St. Francis County Circuit Court suspended imposition of sentence for a period of five years. On February 7, 2000, the State filed a petition to revoke Lamb\u2019s suspended sentence, alleging that he had committed theft by receiving, a class B felony. At the hearing on the petition to revoke, Melva Edens testified that she was in the commercial contracting business and had been for twenty years. She lived in Germantown, Tennessee, and her business was located in Memphis. She testified that Mr. Lamb had been employed by her but was fired on May 10, 1999, for not reporting to work. She testified that a white 1991 Ford truck disappeared from her place of business on September 17, 1999. Lamb had driven this truck in connection with his employment with the company. Ms. Edens also testified that the truck had been washed inside and out in July and August of 1999.\nDouglas Wall, a sergeant with the Forrest City Police Department, testified that on October 2, 1999, he located the stolen truck in a driveway of a vacant house on Brookside Drive in Forrest City. While waiting on a wrecker, he was approached by a man he knew, Alan Kimble, and from his conversation with Kimble, Mr. Lamb was developed as a suspect. Sergeant Wall testified that the truck was found one-half block from Mr. Lamb\u2019s parents\u2019 house and that Lamb sometimes stayed with them.\nDwight Duch, a Forrest City police officer, testified that Mr. Lamb\u2019s palm print was found on the inside of the passenger-side window of the stolen truck.\nMr. Lamb testified that he had been convicted of theft, burglary, and forgery dating back to 1989. He could not say how many felonies he had been convicted of but conceded that it was \u201ctoo many.\u201d He testified that he had been in the truck since the date he was fired \u201capproximately twice.\u201d He testified he thought this was in September or October 1999. He testified that he had just been riding around in the truck, drinking beer, with two men connected with the company. Lamb admitted that he received his mail at his parents\u2019 house. He testified that he went to Memphis in October and stayed in a motel and would not come back to Forrest City during that time because he knew the police were looking for him.\nOn this evidence the trial court found that Lamb had violated the terms of his suspended sentence, revoked his probation, and sentenced him to ten years\u2019 imprisonment.\nIn a revocation proceeding the burden is on the State to prove the violation of a condition of the suspension by a preponderance of the evidence. Ark. Code Ann. \u00a7 5-4-309 (Supp. 1999). On appeal, the trial court\u2019s findings will be upheld unless they are clearly against a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 861 (1992). Evidence that is insufficient for a criminal conviction may be sufficient for the revocation of probation or suspended sentence. See Lemons v. State, 310 Ark. at 383. Since the determination of a preponderance of the evidence turns on questions of credibility and the weight to be given testimony, we defer to the trial judge\u2019s superior position. Lemons, supra; Hoffman v. State, 289 Ark. 184, 711 S.W.2d 151 (1986). Circumstantial evidence may be sufficient to warrant revocation. See Needham v. State, 270 Ark. 131, 603 S.W,2d 412 (Ark. App. 1980).\nWhile the evidence in the case at bar is circumstantial, we cannot conclude that the trial court\u2019s decision was clearly against a preponderance of the evidence. Mr. Lamb\u2019s own testimony places him in the stolen vehicle shortly before it was found within a block of his parents\u2019 home. Lamb\u2019s testimony that he went to Tennessee and stayed in a motel because he was aware the police were looking for him is also relevant. See Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). This is not a case where the trial court\u2019s judgment rests solely on the strength of a fingerprint.\nFor the reasons stated, the decision of the circuit court is affirmed.\nStroud, C.J., Robbins, Crabtree, Pittman, and Roaf, JJ\u201e agree.\nGriffen, Bird, and Vaught, JJ., dissent.", "type": "majority", "author": "John E. JENNINGS, Judge." }, { "text": "Wendell L. GRIFFEN, Judge,\ndissenting. The majority would affirm appellant\u2019s revocation based on testimony that appellant\u2019s palm print was found on the inside passenger window of the stolen truck, and despite testimony that appellant worked for the owners of the truck and had recently ridden in the truck. I respectfully dissent.\nOur law is well established that defendants in a revocation hearing are not granted the full array of rights that accompany a criminal trial. See Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000). As we have often observed, revocation hearings only require that the State prove, by a preponderance of the evidence, that the defendant has violated a term or condition of probation. See Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Because of the different burden of proof, evidence that is not sufficient to sustain a criminal conviction may be sufficient to sustain a probation revocation. See Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998).\nWhile the State is held to a lower degree of proof to sustain a revocation, it must still produce sufficient proof that a violation has occurred. Theft by receiving occurs when a person acquires possession, control, or title of stolen property when that person knew or had good reason to believe the property was stolen. See Ark. Code Ann. \u00a7 5-36-106 (Repl. 1997). Control is defined as the \u201cpower or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee.\u201d See Black\u2019s Law Dictionary 329 (6th ed. 1990). Black\u2019s describes possession as \u201cthat condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.\u201d See Black\u2019s 1163.\nWe have held that in certain circumstances, fingerprints are sufficient to sustain a criminal conviction. See Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). In Ashe, a fingerprint on a detached rearview mirror on the passenger side floorboard, coupled with the fact that the car was stolen within a few blocks of where A.she\u2019s sister lived and the fact that the vehicle was found two months later in the complex where Ashe lived was sufficient to convict Ashe of theft by receiving. See Ashe, supra.\nThe record in this case simply does not support the trial court\u2019s finding that the State met its burden of proving by the greater weight of the evidence that appellant violated his probation by committing the offense of theft by receiving. Significantly, the record fails to demonstrate that appellant acquired control or possession of the truck or that appellant knew or should have known that the truck was stolen. First, the State presented evidence that appellant\u2019s palm print was found on the inside passenger window of the truck, even though appellant had not worked for the company for four months and the truck was washed inside and out at least two times after appellant left employment with the company. While this evidence is sufficient to place appellant in the truck, it cannot, acting alone support a finding that appellant acquired control or possession of the truck without resort to speculation or conjecture. If anything, the location of appellant\u2019s palm print on the inside passenger door side of the vehicle corroborated his testimony that he was a passenger in the truck, and not the driver. Next, the State presented testimony that the truck was discovered two weeks after it was stolen approximately a half block from the home of appellant\u2019s parents and that appellant stayed away from his parents\u2019 home because he knew the police were looking for him. While this evidence may be considered relevant circumstantial evidence, it falls far short of the quantum of evidence presented in Ashe, which involved fingerprints, the close proximity of the theft from the home of Ashe\u2019s relative, and the vehicle being recovered in the apartment complex where Ashe lived. Simply put, even though the State had a lesser burden of proof, it failed to make its case that appellant had control or possession of the vehicle.\nLikewise, the State failed to produce any evidence demonstrating that appellant knew the truck was stolen or had good reason to know the truck was stolen. The evidence in the record included testimony by Officer Wall that the truck bore no outward sign that it had been stolen, that the steering column was not broken, and that the truck was locked when he located it. There was also testimony that all keys to the truck were accounted for. While the trial court was not required to believe the testimony of any witness, it was precluded from resorting to speculation in making its ruling. Because the trial court\u2019s decision was clearly against the preponderance of the evidence, I would reverse.\nI am authorized to state that Judges BIRD and VAUGHT join in this dissenting opinion.", "type": "dissent", "author": "Wendell L. GRIFFEN, Judge," } ], "attorneys": [ "Chris Tarver, for appellant.", "Mark Pryor, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Jimmie LAMB v. STATE of Arkansas\nCA CR 00-1056\n45 S.W.3d 869\nCourt of Appeals of Arkansas Divisions I, II, and III\nOpinion delivered June 20, 2001\nChris Tarver, for appellant.\nMark Pryor, Att\u2019y Gen., by: Misty Wilson Borkowski, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0245-01", "first_page_order": 273, "last_page_order": 277 }