dissenting. The majority would affirm appellant’s revocation based on testimony that appellant’s 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.
Our 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).
While 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. § 5-36-106 (Repl. 1997). Control is defined as the “power or authority to manage, direct, superintend, restrict, regulate, govern, administer or oversee.” See Black’s Law Dictionary 329 (6th ed. 1990). Black’s describes possession as “that condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.” See Black’s 1163.
We 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’s 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.
The record in this case simply does not support the trial court’s 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’s 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’s 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’s parents and that appellant stayed away from his parents’ 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’s 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.
Likewise, 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’s decision was clearly against the preponderance of the evidence, I would reverse.
I am authorized to state that Judges BIRD and VAUGHT join in this dissenting opinion.