Daron Barnett v. State of Arkansas

ar04-833

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR04-833

April 6 , 2005

DARON BARNETT

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM DESHA COUNTY CIRCUIT COURT

[NO. CR 2003-111-4A]

HONORABLE DON E. GLOVER, CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

The Desha County Circuit Court, sitting as trier of fact, convicted appellant Daron Barnett of misdemeanor theft of property and sentenced him to one year in jail. On appeal, Barnett argues that the trial court erred in denying his motion for a directed verdict because the State failed to provide substantial evidence to convict him of theft. We affirm.

On August 9, 2003, Kippy Bryant arrived at the Morgan Point Hunting Club. He saw a woman carrying a sleeping bag running off the porch of one of the camp cabins. He also saw the head of a man who was walking behind Lee Cox's cabin. He later witnessed a man and woman in a boat pass by his location on the river bank. Bryant noticed the doors were open and locks broken on two of the cabins. Bryant called Cox, and Cox called the Desha County Sheriff's Department. Deputy Clarence McTigrit responded to the call. McTigrit called State Trooper Kelvin Fells and asked him to go to the boat ramp at Buzzard Beach. Fells detained Barnett and Shari Hughes until McTigrit arrived. McTigrit found a hand-held scanner belonging to Cox in the bow of Barnett's boat. Barnett was tried on one count of residential burglary and one count of misdemeanor theft of property. Barnett moved for a directed verdict on both counts, arguing that the circumstantial evidence was insufficient to convict him on both counts. The trial court granted his directed verdict motion as to the residential burglary charge and denied his motion as to the theft charge. Barnett was convicted of theft and sentenced to one year in jail. This appeal followed.

Barnett argues that the trial court erred in denying his directed verdict motion because the State failed to provide substantial evidence that he knew a theft had been committed. A motion for directed verdict is a challenge to the sufficiency of the evidence. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002). Evidence, direct or circumstantial, is sufficient if it is substantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Circumstantial evidence can be sufficient to sustain a conviction when it excludes every other reasonable hypothesis consistent with innocence. Lueken v. State, ___ Ark. App. ___, ___ S.W.3d. ___ (Nov. 17, 2004). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Cook, supra. This court will only consider evidence that supports the verdict. Id. When a theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in the commission of the alleged offense. Id.

A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402 (Repl. 1997). Arkansas Code Annotated section 5-2-403 (Repl. 1997) gives the statutory definition of an accomplice:

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

(b) When causing a particular result in an element of an offense, a person is an accomplice in the commission of that offense, if acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:

(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causingthe result; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or

(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. George v. State, 356 Ark. 345, 151 S.W.3d 770 (2004) (citing Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002)). A defendant is an accomplice so long as the defendant renders the requisite aid or encouragement, and it is not necessary that the accomplice actually be present at the scene of the crime or that the accomplice physically commit the crime. Id; Cloird v. State, 352 Ark. 190, 99 S.W.3d 419 (2003).

A person commits theft of property if he or she knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2003). Theft of property is a Class A misdemeanor when the stolen property is valued at $500 or less. Ark. Code Ann. § 5-36-103(b)(4)(A) (Supp. 2003).

Here, Kippy Bryant testified that on August 9, 2003, he went to the Morgan Point Hunting Club, which is a series of cabins along a lake in Desha County. As he drove into the campground, he observed a woman "coming off of [Dr. Joe Little's] porch with a sleeping bag in her hand." When the woman saw Bryant approaching, she dropped the sleeping bag and ran behind the cabin into the woods. Bryant initially followed her into the woods, but he was not able to catch up with her. He then started walking back towards the lake, and he saw the head of someone coming from behind Lee Cox's cabin. He could not identify who it was because he could only see the hair of the person's head. Bryant then heard a boat crank from where the person had been running. The boat passed within twenty-five to thirty yards of Bryant, and he was able to identify its passenger as the same person whose head he had seen running from behind Cox's cabin. Bryant identified this person at trial as Barnett.

After the boat had passed him, Bryant called Cox and told him what he had seen. Cox called the Desha County Sheriff's Department. After his conversation with Cox, Bryant heard the boat stop approximately one hundred to one hundred fifty yards from where Bryant was standing on the lake bank. He heard two people talking, and the boat then continued down the lake. Bryant testified that the man that he had seen coming from behind Cox's cabin was in the boat with the woman he had seen coming off of Dr. Little's porch.

Officer McTigrit testified that he responded to Cox's phone call. McTigrit interviewed Bryant and then called State Trooper Fells, who was working a traffic stop near the boat ramp at Buzzard Beach. McTigrit described the boat and passengers to Fells, and Fells detained the two passengers, Daron Barnett and Shari Hughes, at the boat ramp. McTigrit arrived at the boat ramp and searched the boat. He found Cox's hand-held scanner inside the boat.

Barnett testified in his own behalf. He testified that he pulled up to the bank only to allow Hughes to relieve herself, and that when she returned to the boat, she had her puppy wrapped in a towel. Barnett stated that he never saw the scanner and had no knowledge that it was in the boat, and he denied being near Cox's cabin. Although Barnett offered an explanation as to why the scanner might be in his boat, the trial court was not required to believe his testimony, which was self-serving. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004).

Barnett argues that the evidence is insufficient to prove that he knowingly took or exercised unauthorized control over the scanner. Barnett overlooks the fact that, under accomplice liability theory, the court can convict him of theft of property if he provided the requisite aid or encouragement, and the State does not have to prove that he was actually the one who physically took possession of the scanner. Barnett also contends that it is possible that he had no knowledge of the actions of Shari Hughes and that he might not have known that she took the scanner because she had wrapped it in a towel. Credibility determinations, however, are left to the fact finder. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Here, given the evidence that Bryant witnessed Hughes exit one of the cabins with a sleeping bag in her hands, that Bryant witnessed Barnett emerge from behind the cabin and he saw Hughes and Barnett together in the boat, and that the police found the scanner in the boat, this court can conclude that there was sufficient evidence to convict Barnett of theft of property as an accomplice.

Affirmed.

Bird and Glover, JJ., agree.