Frank E. Morgan v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

FRANK E. MORGAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-228

December 14, 2005

APPEAL FROM THE BRADLEY COUNTY CIRCUIT COURT

[NO. CR-03-86-1]

HON. SAMUEL B. POPE,

JUDGE

AFFIRMED

John Mauzy Pittman, Chief Judge

The appellant was charged with committing the offenses of theft of property (firearms), residential burglary, and battery in the second degree. After a jury trial, he was convicted of theft of property (firearms) and of the lesser offenses of criminal trespass and battery in the third degree. He appeals his theft of property conviction, arguing that there was insufficient evidence to support it. We do not agree, and we affirm.

A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(l) (Supp. 2005). In this context, "deprive" means to withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner. Ark. Code Ann. § 5-36-101(4)(A) (Supp. 2005). Theft of property is a Class C felony if the property is a firearm valued at less than $2,500. Ark. Code Ann. § 5-36-103(b)(2)(C) (Supp. 2005).

When the sufficiency of the evidence is challenged on appeal, the test is whether there is substantial evidence to support the verdict; substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003). In determining whether the evidence is substantial, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Id.

In the present case, the record shows that appellant is the former brother-in-law of the victim and that they had known one another for about thirty years. There was evidence that the victim and appellant had once been close but that they had drifted apart, and the victim had not seen the appellant in several years until shortly before the theft, when appellant approached the victim asking to borrow money. The victim initially loaned appellant $300 and loaned appellant an additional $100 a few days later in response to a further request for money. Soon thereafter, appellant telephoned the victim from Star City jail, telling him that he was incarcerated there and asking the victim to come get him out. The victim refused.

A few days later, appellant called the victim and asked if he could come to the victim's house and spend a couple of days there. The victim told appellant that he could not. Later that day, the victim returned home and unexpectedly found that appellant and appellant's wife had, without his permission or knowledge, entered his house and had "trashed" it, destroying eight of the victim's cowboy hats valued at about $150 each. Appellant admitted breaking into the victim's house and stomping his cowboy hats. The victim attempted to leave when appellant became belligerent, and appellant followed him into the street, hitting and kicking him. The victim called for help and telephoned 911. Appellant then returned to the victim's house, took two guns from the victim's gun cabinet, and left the house. Appellant did nothave the victim's permission to take the guns. Appellant was later apprehended with the guns at a local laundromat.

Appellant admits that he took the guns but argues that this evidence is insufficient to show that he did so with the intent to permanently deprive the owner thereof. We do not agree. Intent can seldom be proven by direct evidence and must usually be inferred from the circumstances surrounding the crime. Whisenant v. State, 85 Ark. App. 111, 100 S.W.3d 674 (2004). The jury is allowed to draw upon its common knowledge and experience to infer intent from the circumstances. Id. Here, there was evidence that appellant broke into the victim's house, destroyed his property, assaulted him, and took two guns without his permission. Appellant testified that the victim had given him permission to take the guns and that he only intended to borrow them. However, the jury was not required to accept this self-serving testimony. The credibility of witnesses is an issue of the jury and not for this court; as trier of fact, the jury is free to believe all or part of a witness's testimony. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Id. It appears that the jury did precisely that in the case at bar, and we cannot say that the finding of guilt is not supported by substantial evidence.

Affirmed.

Hart and Gladwin, JJ., agree.