Steve Vincent Moore v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOHN B. ROBBINS, CHIEF JUDGE

DIVISION IV

STEVE VINCENT MOORE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-390

DECEMBER 20, 2000

APPEAL FROM THE DREW

COUNTY CIRCUIT COURT

[NO. CR-98-245-2]

HONORABLE SAMUEL B. POPE,

CIRCUIT JUDGE

AFFIRMED

Appellant Steve Moore was convicted by a jury of Class B felony theft by receiving and was sentenced to eight years in the Arkansas Department of Correction. He now appeals, arguing that the trial court erred in denying his motion for directed verdict. We affirm.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). Indetermining the

sufficiency of the evidence, we review the proof in the light most favorable to the State, considering only that evidence that tends to support the verdict. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).

William Moore, Steve Moore's father, testified that, in November 1998, appellant lived with him and appellant's mother, along with the Moores' sixteen-year-old adopted daughter. Appellant had been living there for approximately three months. His room had a couch that folded out into a bed. The attic was above appellant's room, and the only entrance to the attic was through stairs that pulled down from the ceiling into the room. According to appellant's father, the attic had been remodeled and had since remained empty.

On a particular Sunday in late November 1998, William Moore and his wife, Linda Moore, noticed what appeared to be a leak in the ceiling. Mr. Moore went into the attic to inspect the problem, and found a whiskey bottle turned over. He then observed suitcases, purses, and various other items hidden underneath the insulation. The Moores had been to church that morning and were preparing to go to evening church services when they found the items in the attic. Mr. Moore testified that appellant had a crack cocaine problem, and because he could not identify any of the items, he contacted the sheriff's office on the following day. Mr. Moore was unaware of when or how the items got into the attic.

Mrs. Moore testified that she is always home except on Tuesdays for a couple of hours and on Sundays when she attends church. She stated that when she left for church onthe Sunday morning at issue, appellant was still in bed. She believed that her son put the items in the attic while she and her husband were at church because the brown spot on the ceiling was not there before they went to church.

Deputy Tommy Cox of the Drew County Sheriff's Department testified that when he arrived at the Moores' residence to investigate, appellant was asleep in his bedroom. He and other officers awoke appellant and lowered the stairway to look in the attic. Appellant was then arrested, and the suspected contraband was taken to the police station.

Chief of Police Officer Sam Norris inventoried the items and found them to match goods that had been reported stolen a week earlier from a residence and a Christmas store. These included silverware, jewelry, and liquor from the residence, and electronic equipment, purses, and ornaments from the store.

Robin McClendon, the victim of the residential burglary, testified that she recovered most of her stolen property from the police station. However, she was initially unable to recover a charm bracelet. About a week later, the bracelet was also returned to her.

Steve Moore testified on his own behalf, and he admitted to having a drug problem and to ingesting cocaine on the night before the items were discovered by his parents. However, he denied having any knowledge of the items being in the attic. He explained that, on Sunday morning after his parents left for church, a friend called him, said he was in a fight with his wife, and needed a place to store his things. Appellant told his friend he would be gone for awhile, that he would leave the door open, and that he could use his room for storage. Later that day, appellant found a bracelet on his couch, and placed it in the glovecompartment of his car. After being arrested, appellant told the police where to find the bracelet because "the property needed to be returned to her." However, he denied any knowledge of the property in the attic and stated he never intended to deprive either of the victims of their property.

For reversal, appellant argues that there was insufficient evidence to support his conviction for theft by receiving, which is committed if a person "receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen." See Ark. Code Ann. § 5-36-106(a) (Repl. 1997). He acknowledges that the State proved that the property found in the Moores' attic had been stolen in burglaries. However, he submits that there was insufficient proof that he is the one who placed the stolen property in the attic. Alternatively, appellant contends that even if he placed the items in the attic or was aware of their existence, there was insufficient proof that he knew or had good reason to know that they were stolen.

We hold that the circumstantial evidence presented by the State amounted to substantial evidence of appellant's guilt. In proving the offense of theft by receiving, it is not necessary for the State to prove the accused had actual possession of the stolen property; it is enough to prove he had constructive possession or the right to control. Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990). In the instant case there was evidence that appellant's parents did not keep items in the attic and had not been in the attic for several weeks prior to discovering the stolen goods. Furthermore, it is undisputed that one of the stolen items had been in appellant's vehicle. It is also undisputed that the only access to the attic wasthrough appellant's bedroom. This evidence supported the jury's finding that appellant was in possession of the items.

While appellant argues that the evidence failed to establish that he knew or had reason to know that the property was stolen, we disagree. The unexplained possession of recently stolen property gives rise to the presumption that the accused knows or believes that the property was stolen. See Ark. Code Ann. § 5-36-106(C) (Repl. 1997); Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). Although appellant denied knowledge of the existence of the property in the attic or that it was stolen, the jury was not required to believe his version of the events as he was the person most interested in the outcome of the trial. See Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Appellant testified that he left the house unlocked and vacated the premises while a friend was supposedly bringing personal items to be stored in appellant's room; however, a defendant's improbable explanation of suspicious circumstances may be admissible as proof of guilt. See Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

The circumstantial evidence supports appellant's conviction because it is consistent with appellant's guilt and inconsistent with any other reasonable conclusion. Thus, we affirm appellant's conviction for theft by receiving.

Affirmed.

Stroud and Roaf, JJ., agree.