Cox-Hilstrom v. State

Keith COX-HILSTROM v. STATE of Arkansas

CA CR 96-563                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                       Divisions II & III
                 Opinion delivered June 25, 1997


1.   Evidence -- directed-verdict motion is challenge to
     sufficiency of evidence -- sufficiency of evidence reviewed
     before trial errors. -- A motion for a directed verdict is a
     challenge to the sufficiency of the evidence; preservation of
     appellant's right to freedom from double jeopardy requires a
     review of the sufficiency of the evidence prior to a review of
     trial errors.

2.   Evidence -- sufficiency of -- factors on review. -- When
     reviewing the sufficiency of the evidence, the appellate court
     views the evidence in the light most favorable to the State
     and affirms where there is substantial evidence to support the
     verdict; evidence is sufficient to support a conviction if the
     trier of fact can reach a conclusion without having to resort
     to speculation or conjecture; substantial evidence is that
     which is forceful enough to compel reasonable minds to reach
     a conclusion one way or another. 

3.   Evidence -- no evidence to support appellant's conviction of
     theft by deception -- conviction reversed. -- Where there was
     no evidence that appellant made a misleading or false
     representation to a newspaper; where appellant testified that
     he leased the entire business, and there was evidence from
     which the fact finder could infer that appellant reasonably
     believed that he also assumed the car-wash account with the
     newspaper; and where each of the statements was addressed to
     the car wash, and the lessor's name was not on the statements,
     there was insufficient evidence to support the conclusion that
     appellant "knowingly" sought to deceive the newspaper by
     creating a false impression or by failing to correct a false
     impression that he knew to be false; the appellate court found
     that the conviction for theft by deception was based on
     speculation and conjecture and reversed the trial court.

4.   Evidence -- counsel's offer of proof on witness's anticipated
     testimony sufficient. -- Where a defense witness was to
     testify as to the actions of an employee that he saw take cash
     from a money bag belonging to appellant's business to make
     purchases for her personal use, counsel's offer of proof as to
     the witness's anticipated testimony was sufficient.

5.   Evidence -- evidence that someone other than defendant may
     have committed crime -- when admissible. -- Evidence that
     someone other than the defendant may have committed the crime
     is inadmissible unless it points directly to the third party's
     guilt; if it creates no more than an inference or conjecture
     as to the third party's guilt, it is inadmissible. 

6.   Witnesses -- no evidence linking employee to theft of lessor's
     property -- no abuse of discretion in exclusion of testimony.
     -- The trial court's ruling that the testimony was irrelevant
     and inadmissible because there was no evidence that the
     employee had stolen money from the lessor was correct; the
     testimony was that only the employee and appellant had keys to
     the leased premises and that she knew that items had been
     removed from the premises; however, there was no evidence
     presented linking the employee to the theft of the lessor's
     property; the trial court did not abuse its discretion in
     excluding the testimony. 

7.   Jury -- instructions given in criminal case -- test for error.
     -- In determining if the trial court erred in refusing an
     instruction in a criminal case, the test is whether the
     omission infects the entire trial such that the resulting
     conviction violates due process; the burden of showing
     prejudice is much heavier when an instruction is omitted than
     when an erroneous instruction is given.

8.   Jury -- refusal to give instruction not error -- instructions
     given by court sufficient. -- Appellant's argument that the
     court erred in refusing his proposed jury instruction, which
     essentially repeated the entire text of Ark. Code Ann.  5-36-
     115 (Repl. 1993), concerning theft of leased personal
     property, was without merit; where part of the statute
     concerned the giving of and waiver of notice, but the owners'
     notice was not an element of the offense of theft of leased
     property, no error was found in the trial court's ruling that
     appellant's instruction had no application to the case or was
     covered in other instructions. 

9.   Jury -- no error in refusing to give instruction where no
     evidence supported giving it. -- Appellant's argument that the
     court erred in failing to instruct the jury as to an
     affirmative defense set forth in Ark. Code Ann.  5-36-115(e)
     (Repl. 1993) was without merit; all of the factors listed in
     subsection (e) must be established in order to prove an
     affirmative defense; appellant did not provide evidence that
     his failure to return the property was lawful or that he, when
     demand was made, returned the property; there was no error in
     refusing to give an instruction where there was no evidence to
     support the giving of that instruction.


     Appeal from Sebastian Circuit Court, Fort Smith District; Don
Langston, Judge; affirmed in part; reversed and dismissed in part.
     Davis & Cox, by:  James O. Cox, for appellant.
     Winston Bryant, Att'y Gen., by:  David R. Raupp, Asst. Att'y
Gen., for appellee.
     John Mauzy Pittman, Judge. 
     Keith Cox-Hilstrom appeals from a jury-trial conviction of
theft of leased personal property and theft by deception, for which
he was sentenced to concurrent terms of five years and three years,
respectively, in the Arkansas Department of Correction.  Appellant
argues that the court erred in disallowing exculpatory testimony of
a defense witness, in refusing appellant's proposed jury
instructions on theft of leased personal property, and in failing
to direct a verdict on the charge of theft by deception.  We affirm
in part and reverse and dismiss in part.
     On November 10, 1993, appellant leased from Gary Anschutz
Superior Car Wash and Quick Lube, a business in Fort Smith,
Arkansas.  After Anschutz terminated the lease, appellant vacated
the premises on March 10, 1994.  Anschutz subsequently discovered
that tools and equipment were missing and filed a police report
which resulted in the charge of theft of leased property.
     A motion for a directed verdict is a challenge to the
sufficiency of the evidence.  Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).  Preservation of appellant's right to freedom
from double jeopardy requires a review of the sufficiency of the
evidence prior to a review of trial errors.  Byrum v. State, 318
Ark. 87, 884 S.W.2d 248 (1994).  Anschutz had an account with the
Southwest Times Record, a Fort Smith newspaper.  Appellant was
charged with theft by deception of more than $200.00 for
maintaining an account under Anschutz's account number at the
newspaper.  Appellant challenges the sufficiency of the evidence to
support his conviction of theft by deception and contends the State
failed to prove that he knowingly obtained the property of another
by deception.  Anschutz testified that the account had a zero
balance in November 1993 when appellant leased the business. 
Billing statements from the newspaper dated from November 1993 to
March 1994 reflecting a balance due of $886.99 were introduced into
evidence.  Appellant's conviction is based on the charges made to
the account from November 1993 to March 1994.  In denying
appellant's motion for directed verdict, the court stated that the
November 1993 statement showing a previous balance of $70.25 and a
$70.25 credit, leaving a zero balance, should have indicated to
appellant that this was an existing account and that appellant,
unless he sought to deceive, would have requested a new account
when he took over the business rather than charging to Anschutz's
account.  
     Appellant testified that he leased the business in November
1993 and advertised in the newspaper that the business was under
new management.  The November 1993 statement of the newspaper
reflects the charge for the ad, identifying the ad as "now under
new mgmt."  Newspaper representatives said that they were aware
that appellant was now running the business and that the
newspaper's statements were addressed to "Superior Car Wash," were
sent to the business address, and were received by appellant. 
There was no evidence that the newspaper submitted the statements
to Anschutz or sought payment from Anschutz after November 1993. 
Curtis Haney, a salesman with the newspaper, sold ads to appellant. 
He testified that he thought the account belonged to appellant and
that he was unaware that it was Anschutz's account.
     Theft by deception occurs when a person "knowingly obtains the
property of another person, by deception or by threat, with the
purpose of depriving the owner thereof."  Ark. Code Ann.  5-36-
103(a)(2) (Repl. 1993).  A person acts "knowingly" with respect to
his conduct or the attendant circumstances when he is aware that
his conduct is of that nature or that such circumstances exist.  A
person acts knowingly with respect to a result of his conduct when
he is aware that it is practically certain that his conduct will
cause such a result.  Ark. Code Ann.  5-2-202(2) (Repl. 1993). 
Finally, "deception" means:
          (i)  Creating or reinforcing a false impression,
     including false impressions of fact, law, value, or
     intention or other state of mind that the actor does not
     believe to be true; or

          (ii) Preventing another from acquiring information
     which would affect his judgment of a transaction; or

          (iii)  Failing to correct a false impression that
     the actor knows to be false and that he created or
     reinforced or that he knows to be influencing another to
     whom he stands in a fiduciary or confidential
     relationship; or

     * * *

          (v)  Employing any other scheme to defraud.

Ark. Code Ann.  5-36-101(3)(A) (Repl. 1993).
     When reviewing the sufficiency of the evidence, we view the
evidence in the light most favorable to the State and will affirm
where there is substantial evidence to support the verdict.  Martin
v. State, 328 Ark. 420, ____ S.W.2d ____ (1997).  Evidence is
sufficient to support a conviction if the trier of fact can reach
a conclusion without having to resort to speculation or conjecture. 
McGehee v. State, 328 Ark. 404, 943 S.W.2d 585 (1997).  Substantial
evidence is that which is forceful enough to compel reasonable
minds to reach a conclusion one way or another.  Id.  A review of
the record indicates that there is no evidence to support
appellant's conviction of theft by deception.  There is no evidence
that appellant made a misleading or false representation to the
newspaper.  Wiley v. State, 268 Ark. 552, 594 S.W.2d 57 (Ark. App.
1980).  The trial court's basis for overruling appellant's motion
for directed verdict was the reflection of a previous balance on
the November 1993 statement, which the court held should have
alerted appellant that he was charging to an existing account and
that he should have opened a new account.  Appellant testified that
he leased the entire business, and there was evidence from which
the fact finder could infer that appellant reasonably believed that
he also assumed the Superior Car Wash account with the newspaper. 
Although the lower court found that appellant charged on Anschutz's
account, each of the statements is addressed to Superior Car Wash
and Anschutz's name is not on the statements.  
     There is insufficient evidence to support the conclusion that
appellant "knowingly" sought to deceive the newspaper by creating
a false impression or by failing to correct a false impression that
he knew to be false.  The only evidence that is unfavorable to
appellant is that, admittedly, he failed to pay the account during
the five-month period.  However, there was testimony that the
business declined during the winter months and that appellant's
check for the February 1994 lease payment was returned for
insufficient funds.  Appellant testified that he did not pay the
amount due because of financial constraints.  We believe that the
conviction for theft by deception is based on speculation and
conjecture and must be reversed.
     Appellant also argues that the court erred in refusing to
allow a defense witness, James Davis, to testify.  Davis would have
testified that he was with appellant's employee, Roni Ward, at Wal-
Mart and that he saw Ward take cash from a money bag belonging to
appellant's business to make purchases for her personal use.  The
State argues that appellant's argument should be rejected due to
his failure to make a sufficient proffer.  However, we hold
counsel's offer of proof as to the witness's anticipated testimony
to be sufficient.  Echols v. State, 326 Ark. 917, 936 S.W.2d 509
(1996); Ark. R. Evid. 103(a)(2).  The trial court ruled that the
testimony was irrelevant and inadmissible because there was no
evidence that Ward had stolen money from Anschutz.  Appellant
contends that, because Ward stole from him, it could be inferred
that she was of such character that she would also steal from
Anschutz.  We believe that the trial court's ruling was correct. 
Evidence that someone other than the defendant may have committed
the crime is inadmissible unless it points directly to the third
party's guilt.  Echols, supra.  If it creates no more than an
inference or conjecture as to the third party's guilt, it is
inadmissible.  Echols, supra; Johnson v. State, 326 Ark. 430, 934 S.W.2d 179 (1996); Zinger v. State, 313 Ark. 70, 852 S.W.2d 320
(1993); Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). 
The testimony was that only Ward and appellant had keys to the
leased premises and that she knew that items had been removed from
the premises.  However, there was no evidence presented linking
Ward to the theft of Anschutz's property.  We conclude that the
trial court did not abuse its discretion in excluding the
testimony.  Zinger, supra.
     Appellant's next argument concerns the court's instruction to
the jury on theft of leased personal property.  The State and the
appellant both agree that there is not a model instruction for
theft of leased property.  Appellant argues that the court erred in
refusing his proposed jury instruction, which essentially repeats
the entire text of Ark. Code Ann.  5-36-115 (Repl. 1993),
concerning theft of leased personal property.  The trial court
ruled that appellant's instruction had no application to the case
or was covered in other instructions.  Arkansas Code Annotated  5-
36-115(c) provides that it is prima facie evidence of intent to
commit theft when the one who has leased the personal property of
another fails to return the property to the owner after receiving
notice from the owner that the lease has terminated.  Appellant
argues that Anschutz did not provide notice, that notice is
required, and that the jury should have been instructed with  5-
36-115(c) as to the giving of notice and with subsection (f) which
provides for waiver of notice.  However, the owner's notice is not
an element of the offense of theft of leased personal property. 
Subsection (c) merely provides a method by which the State may
prove a prima facie case of intent to commit theft.  The State was
not restricted to the method set forth in subsection (c) to prove
commission of the offense.
     The court gave the following jury instruction:
          To sustain the charge of theft of leased personal
     property the State must prove beyond a reasonable doubt
     that [appellant] intentionally and fraudulently took or
     appropriated in any wrongful manner the property of Gary
     Anschutz, which was leased to [appellant].

The offense of theft of leased personal property is committed when
a person shall "intentionally, fraudulently, or by false pretense
take, carry, lead, drive away, destroy, sell, secrete, convert, or
appropriate in any wrongful manner any personal property which is
leased,. . .and thereby fraudulently obtains possession of that
personal property."  Ark. Code Ann.  5-36-115(a) (Repl. 1993).  In
determining if the trial court erred in refusing an instruction in
a criminal case, the test is whether the omission infects the
entire trial such that the resulting conviction violates due
process.  Hardcastle v. State, 25 Ark. App. 157, 755 S.W.2d 228
(1988); Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980).  The
burden of showing prejudice is much heavier when an instruction is
omitted than when an erroneous instruction is given.  Evans v.
State, 287 Ark. 136, 697 S.W.2d 879 (1985).  We find no error in
the court's instruction.
     Appellant also argues that the court erred in failing to
instruct the jury as to an affirmative defense set forth in Ark.
Code Ann.  5-36-115(e) (Repl. 1993).  We have stated that all of
the factors listed in subsection (e) must be established in order
to prove an affirmative defense.  Parks v. State, 24 Ark. App. 139,
750 S.W.2d 65 (1988).  Appellant did not provide evidence that his
failure to return the property was lawful or that he, when demand
was made, returned the property.  There is no error in refusing to
give an instruction where there is no evidence to support the
giving of that instruction.  Id.
     Affirmed in part; reversed and dismissed in part.
     Robbins, C.J., and Jennings and Rogers, JJ., agree.
     Arey and Bird, JJ., dissent.


                  Sam Bird, Judge, dissenting.

     While I agree with the decision of the majority to reverse and
dismiss the charge of theft by deception, I respectfully disagree
with the majorityþs opinion to not reverse and remand for a new
trial on the remaining charge of theft of leased personal property
with proper instructions to the jury to consider the affirmative
defense to which the appellant is entitled.
     Appellant was charged with theft of leased personal property
as defined in Ark. Code Ann.  5-36-115 (Repl. 1993).  In my view,
this statute is intended to deal with the evil of people who
acquire possession of personal property, such as VCRs, TV sets,
furniture, appliances, cars, etc., under short-term leases, with
the intention to defraud the lessor.  For example, section (a) of
 5-36-115 provides as follows: 
          Any person is guilty of theft and subject to the
     punishments prescribed by  5-36-103 who shall
     intentionally, fraudulently, or by false pretense take,
     carry, lead, drive away, destroy, sell, secrete, convert,
     or appropriate in any wrongful manner any personal
     property which is leased, rented, or entrusted to the
     person, or reports falsely of his wealth or mercantile
     credit and thereby fraudulently obtains possession of
     that personal property. 
     My view of the purpose of the statute is reenforced by the
language of section (c) which provides:
     It shall be prima facie evidence of intent to commit
     theft when one who has leased or rented the personal
     property of another fails to return or make arrangements
     acceptable with the lessor to return the personal
     property to its owner within five (5) days, excluding
     Saturday, Sunday, or state or federal holidays, after
     proper notice following the expiration of the lease or
     rental agreement or presents identification to the lessor
     or renter thereof which is false, fictitious, or not
     current with respect to name, address, place of
     employment, or other appropriate items.

     Section (d) of the statute provides that the þproper noticeþ
referred to in section (c) þshall consist of a written demand
addressed and mailed by certified or registered mail to the lessee
at the address given at the time of making the lease or rental
agreement.þ 
     In the case at bar, appellant, as lessee, entered into a
written contract for a three-year lease of a carwash and
lubrication business that carried with it, incidental to the
business, certain items of personal property.  The items of
personal property were supposed to have been described in an
exhibit that was supposed to have been attached to the contract. 
However, the lessor admitted that no inventory was taken and the
exhibit was never attached to the contract.  As a consequence,
there was no way to determine what items of personalty were owned
by the lessor and what items had been acquired by the lessee
subsequent to his lease of the business.  After appellant defaulted
under the contract and removed much of the personal property from
the leased premises, a question arose as to which items of personal
property belonged to the lessor and which items had been acquired
by the appellant subsequent to his acquisition of the lease.  After
a complaint by the lessor to the local police, the prosecuting
attorney filed charges against appellant for theft of leased
personal property under Ark. Code Ann.  5-36-115.  In my view,
this factual scenario does not give rise to a prosecution under 
5-36-115.
     However, assuming for the sake of argument that  5-36-115 is
applicable to the case at bar, it is clear from the language of the
statute that to be guilty of the crime of theft of leased personal
property, one must þintentionally, fraudulently, or by false
pretenseþ obtain possession of the leased property, or fail to
return it to the owner within five days after þproper noticeþ
following expiration of the lease term.  However, the court gave an
instruction that merely required the jury to find that appellant
þ[i]ntentionally and fraudulently took or misappropriated in any
wrongful manner the property of Gary Anschutzþ in order to sustain
the charge.  I believe that this was error because there is no
evidence in the record to support the courtþs instruction since
appellant clearly did not obtain possession of Mr. Anschutzþs
carwash and lubrication business, or the personal property therein
situated, fraudulently or by false pretense. 
     The majority holds that it was not erroneous for the trial
court to refuse to give an instruction that informed the jury of
the ownerþs obligation to provide notice to the lessee as set forth
in  5-36-115(c) because þthe ownerþs notice is not an element of
the offense of theft of leased personal property.þ  The majority
has apparently missed the point of appellantþs requested
instruction.  Appellantþs requested instruction was not offered for
the purpose of informing the jury of the elements of the offense,
but was offered to inform the jury about an affirmative defense
that was afforded to him under the clear language of  5-36-115(e),
which provides as follows:
     (e) The following factors shall constitute an           
         affirmative defense to prosecution for theft: 
     (1) That the lessee accurately stated his name and           
         address at the time of rental;
     (2) That the lesseeþs failure to return the item at the      
         expiration date of the rental contract was lawful;
     (3) That the lessee failed to receive the
         lessorþs notice personally unless notice was 
         waived; and
     (4) That the lessee returned the personal 
         property to the owner or lessor within forty-
         eight(48)hours of the commencement of prosecution,
         together with any charges for the overdue 
         period and the value of damages to the personal          
         property, if any. (Emphasis added.)
 
      All of the elements necessary to justify an instruction as to
this affirmative defense were present in this case.  As to the
first element, the State did not contend, nor is there any evidence
that would support a contention, that appellant did not provide his
correct name and address at the time he entered into the agreement
to lease Anschutzþs business.  As to the second element, the only
evidence in the record was that the lease agreement did not expire
until November 9, 1996, long after appellant was charged.  Thus,
there is no evidence to support any claim that appellant did not
return the items of personal property before the contract expired. 
As to the third element, it was clear that appellant did not
personally receive a þproper noticeþ following expiration of the
lease since it was admitted by Anschutz in his testimony that none
was ever sent; and there was no evidence that notice was waived by
appellant.  As to the fourth element, the record reflects that all
the missing property except a chair was returned to its owner on
September 7, 1995, within forty-eight hours after the State
commenced new charges against appellant by its Amended Information,
filed September 5, 1995.  The amended information constituted the
commencement of a new charge since it increased the charge from a
Class C to a Class B felony based upon new allegations that the
value of the property allegedly stolen was more than $2,500.  Cf. 
United States v. Gengo, 808 F.2d 1 (2d Cir. 1986); Maytag v.
Municipal Court, Santa Barbara, 133 Cal. App. 3d 828, 184 Cal. Rptr. 365 (1982). 
     In my view, the record was sufficient to require the court to
instruct the jury about the availability of the affirmative defense
provided for in the statute, and its failure to do so was error
calling for a reversal and remand for new trial on the charge of
theft of leased personal property.
     I am authorized to state that Judge Arey joins me in this
dissenting opinion.