Jerry L. Martin a/k/a Jerry McCoy v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE JOSEPHINE LINKER HART

DIVISION IV

JERRY L. MARTIN

A/K/A JERRY McCOY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-474

November 14, 2001

APPEAL FROM

THE BRADLEY COUNTY CIRCUIT COURT

[NO. CR-2000-83-1]

HONORABLE DON GLOVER, CIRCUIT JUDGE

AFFIRMED

A jury found Jerry Martin guilty of breaking and entering a sports utility vehicle owned by Jennifer Jones, the wife of the arresting officer, and of criminal trespass of a vehicle owned by Amber Glossup. He was sentenced as a habitual offender to a term of 120 months in the Arkansas Department of Correction for the breaking or entering conviction and to ninety days in the county jail and a $500 fine for the criminal trespass conviction, with the sentences to run concurrently. For reversal, appellant argues that the evidence was insufficient to sustain his conviction for breaking or entering. We disagree and affirm.

On August 4, 2000, Officer Jones of the Warren Police Department responded to a call from Amber Glossup notifying the police that moments earlier she had observed an unidentified man, who had broken into her car, leave her yard on foot. Officer Jones, who lived near the area, went to assist two other officers who were investigating the call. As he passed near his home, he noticed that the dome light in his personal automobile, a Toyota

sports utility vehicle, was lit, and saw appellant exit the vehicle and jog down the street.

After stopping appellant and questioning him as to his purpose for being in the yard, he conducted a pat-down search for weapons. During the pat-down search, Glossup arrived and identified appellant as the man she saw inside her car. Officer Jones found two compact discs on the person of appellant. One disc was found in appellant's pocket, and the second one was found in a portable compact disc player carried by appellant. One of the discs was by the performer Tupac Shakur, and the other was by Puff Daddy.

Officer Jones arrested appellant and turned him over to the other two officers who were present and did so without advising either officer that he had seen appellant in his Toyota, which was parked at his residence. Officer Jones then took the discs to his wife, Jennifer, and asked her to look inside the Toyota to see if anything was missing. At trial, Mrs. Jones testified that when she looked in the vehicle, she noted that it had been "messed up" and that "somebody had went through it real good." Mrs. Jones stated that the discs had no distinguishing marks, and, therefore, she could not positively identify these two discs as her own. However, she stated that she did own identical discs and both were missing from the vehicle.

The State's evidence was countered by appellant's sister, Linda Marshall. She testified that she owns many discs and included in her collection were discs by Tupac and Puff Daddy. She specified, "I like 2 Pac [Tupac] a lot. Well, back on August 4 ... I owned rap CDs." She further stated that she had been with the appellant that evening and could identify one of the discs and recalled that she purchased the disc at Target in 1996. Sheidentified the other disc as the one produced by Puff Daddy and testified that the appellant brought it with him when he moved into her home in June. Further, she stated that she had not seen either of the discs since the appellant's arrest. She also testified that the appellant owned a portable disc player and that when he left her house on the night of his arrest, he had the disc by Tupac and the other disc with him.1

Appellant's niece, Memory Martin, testified that on the evening of appellant's arrest, her uncle was going to the store for cigarettes and soft drinks. She testified that prior to his leaving, she helped him find batteries for his disc player and that he left with two discs, one performed by Tupac and No Way Out by Puff Daddy. She asserted that she specifically remembered the discs and that he usually played those two discs. Appellant's other niece, Tamika Marshall, also testified that she saw appellant leave the house that evening with his disc player and two discs by the performers Tupac and Puff Daddy.

The jury convicted appellant of breaking or entering into the vehicle belonging to Jones and of criminal trespass of the vehicle belonging to Glossup. From that verdict, appellant appeals the breaking or entering conviction.

On review, this court affirms the jury verdict if it is supported by substantial evidence. Our definition of substantial evidence is well settled; it is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, passing beyond mere surmise and suspicion. Pettus v. McDonald, 343 Ark. 507, 336 S.W.3d 745(2001). In Kristie's Katering, Inc. v. Ameri, 72 Ark. App. 102, 110, 35 S.W.3d 807, 812 (2000), this court stated that "in determining whether a jury's verdict is supported by substantial evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf the judgment was entered."

Arkansas Code Annotated section 5-39-202(a)(Repl. 1997) provides in pertinent part: "[A] person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle...." Theft of property has been defined as a person knowingly taking or exercising "unauthorized control over," or making "an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof," or obtaining "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)(Repl. 1997).

In support of his argument for reversal, appellant asserts that the State sought to prove his intent to commit a theft by proving that the appellant had stolen the discs from the Joneses' vehicle. Appellant contends that Mrs. Jones was unable to prove with any degree of certainty that the discs found on appellant's person did, in fact, belong to her and, thus, the State's evidence was insufficient. Appellant argues that his witnesses established that he had taken his disc player and two discs by the performers Tupac and Puff Daddy, with him when he left home earlier that evening. It is not controverted that at the time of the arrest, appellant had on his person a compact disc player, apparently his own, and the two discs, the ownership of which is in dispute.

It is for the jury to determine not only the facts but also the credibility of the witnesses and to resolve any inconsistencies in the testimony or evidence. Thus, a jury may choose to believe the facts presented by the State over those facts presented by the defendant. Bell v. State, 334 Ark. 285, 298, 973 S.W.2d 806, 813 (1998). Since intent cannot ordinarily be proven by direct evidence, the jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances. Jones v. State, 72 Ark. App. 271, 275, 35 S.W.3d 345, 348 (2000) (citing Robinson v. State, 293 Ark. 243, 737 S.W.2d 153 (1987)). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Leaks v. State, 345 Ark. 182, 186, 45 S.W.3d 363, 366 (2001). From the evidence presented, the fact finder could believe that the discs were the property of Mrs. Jones and could infer that appellant had the requisite intent to commit a theft by breaking into a vehicle that he did not own and disturbing its contents. Therefore, we affirm.

Affirmed.

Vaught and Baker, JJ., agree.

1 The witness had left her home before appellant, but had been told by her children that he took his disc player and the two discs.