Larry Matney v. State of Arkansas

2022 Ark. App. 404, 654 S.W.3d 688

• Court: Court of Appeals of Arkansas
• Decided: October 19, 2022
• Status: Published

Opinion

Cite as 2022 Ark. App. 404 ARKANSAS COURT OF APPEALS DIVISION IV No. CR-22-68

Opinion Delivered October 19, 2022

LARRY MATNEY APPEAL FROM THE POINSETT APPELLANT COUNTY CIRCUIT COURT [NO. 56CR-18-320] V. HONORABLE CINDY THYER, JUDGE STATE OF ARKANSAS AFFIRMED APPELLEE

BART F. VIRDEN, Judge

The Poinsett County Circuit Court revoked the probation of appellant Larry Matney

after finding that he had violated the terms and conditions of his probation. He was

sentenced to six years’ imprisonment. Matney argues on appeal that the trial court erred in

revoking his probation because the State failed to prove that he committed fourth-degree

sexual assault. We affirm.

I. Background

In November 2019, Matney pleaded guilty to first-degree criminal mischief and was

placed on probation for a period of five years. One of the conditions of his probation was

that he must “obey all federal and state laws.” On February 5, 2021, the State filed a petition

to revoke and later amended the petition to allege, among other violations, that Matney had

committed two counts of fourth-degree sexual assault on February 3, 2021. At a revocation hearing, the two victims testified to the following summary of events.

The girls, who were both fourteen years old, had a sleepover at the home of Minor Child 1’s

father on February 3. In the early morning hours, Minor Child 1’s cousin, Matney, came

into the bedroom where the girls were sleeping to ask whether either of them had a cell

phone. Both girls told Matney that they did not. Instead of leaving, Matney lay on the bed

with them. Minor Child 1 testified that Matney rubbed her “bottom” and tried to touch her

vagina and that she got up and went into the bathroom. Minor Child 2 testified that Matney

then rubbed her “bottom” and touched her breast and that she got up and joined Minor

Child 1 in the bathroom. Once the girls returned to the bedroom, Matney asked them

whether they were virgins and whether they wanted to have sex with him. Both declined,

and Matney eventually left.

II. Standard of Review

Pursuant to Ark. Code Ann. § 16-93-308(d) (Supp. 2021), a trial court may revoke a

defendant’s probation at any time prior to the expiration of the period of probation if it

finds by a preponderance of the evidence that the defendant has inexcusably failed to comply

with a condition of the probation. The State’s burden of proof in a revocation proceeding is

less than is required to convict in a criminal trial, and evidence that is insufficient for a

conviction may be sufficient for a revocation. Morgan v. State, 2020 Ark. App. 212, 599

S.W.3d 665. When the sufficiency of the evidence is challenged on appeal from an order of

revocation, the trial court’s decision will not be reversed unless its findings are clearly against

the preponderance of the evidence. Id. This court defers to the superior position of the trial

2 court on determinations of credibility and weight to be given to the testimony. Gilbreth v.

State, 2020 Ark. App. 86, 596 S.W.3d 29.

III. Discussion

Matney argues that there was no evidence that he committed fourth-degree sexual

assault. Arkansas Code Annotated section 5-14-127(a)(1)(B) (Supp. 2021) provides that a

person commits sexual assault in the fourth degree if the person, being twenty years of age

or older, engages in sexual contact with another person who is less than sixteen years of age

and not the person’s spouse. “Sexual contact” means an act of sexual gratification involving

the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person

or the breast of a female. Ark. Code Ann. § 5-14-101(12)(A) (Supp. 2021).

On appeal, Matney does not specify any element of the offense that was not proved

by the State’s evidence; rather, he generally argues that there was no discussion, argument,

or evidence presented on the elements. According to Matney, the State effectively ignored

the elements by not identifying them for the trial court and addressing each one.

Although the State did not inform the trial court of the specific elements to prove

sexual assault in the fourth degree, this court has held that the trial court is presumed to

know and follow the law. Clinkscale v. State, 2018 Ark. App. 273, 550 S.W.3d 49. The trial

court was presented with sufficient evidence to find that Matney violated a condition of his

probation by committing fourth-degree sexual assault. The record shows that Matney’s

birthday is August 14, 1977, meaning that he was over the age of twenty on February 3,

2021. Mathis v. State, 2021 Ark. App. 49, 616 S.W.3d 274 (recognizing that a court may take

3 judicial notice of its own record in the same case file). Moreover, both victims testified at the

hearing that they were fourteen years old on February 3. Minor Child 1 testified that Matney

is her cousin and that he rubbed her buttocks. Minor Child 2 testified that she first met

Matney on February 3 when he rubbed her buttocks and touched her breast. The

circumstances indicate that neither minor could be Matney’s spouse, and the trial court

expressly found both victims credible with respect to Matney’s actions. We cannot say that

the trial court’s decision to revoke Matney’s probation was clearly against the preponderance

of the evidence.

Further, Matney cites Ark. Code Ann. § 5-4-303(a) (Supp. 2021), which provides that,

if a court places a defendant on probation, the court shall attach such conditions as are

reasonably necessary to assist the defendant in leading a law-abiding life. Moreover, Matney

points to section 5-4-303(e)(2), which provides that the trial court shall give the defendant a

written statement explicitly setting forth the conditions under which he is being released.

Matney also relies on Ross v. State, 268 Ark. 189, 594 S.W.2d 852 (1980), for the proposition

that courts have no power to imply and subsequently revoke on conditions that were not

expressly communicated in writing.

Matney appears to be arguing that the terms and conditions of his probation did not

specifically advise him in writing that he may not commit fourth-degree sexual assault or that

he may not have sexual contact with minors who are not his spouse. The suggestion is that

the condition that he must “obey all federal and state laws” was insufficient to put him on

notice of what behavior is prohibited. Matney, however, signed the terms and conditions of

4 his probation indicating that he understood what was required. Geeslin v. State, 2017 Ark.

App. 571, 533 S.W.3d 132. Moreover, we have no hesitation in holding that the condition

that Matney must “obey all federal and state laws” was sufficiently clear to inform him that

he must not commit another criminal offense.

Affirmed.

KLAPPENBACH and WHITEAKER, JJ., agree.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att’y Gen., by: Michael Zangari, Ass’t Att’y Gen., for appellee.