Anthony O'Neil Hughes v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN B. ROBBINS, JUDGE

DIVISION III

ANTHONY O'NEIL HUGHES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA 00-964

SEPTEMBER 12, 2001

APPEAL FROM THE

MONTGOMERY COUNTY

CHANCERY COURT [NO. J-99-51]

HONORABLE GAYLE K. FORD,

CHANCERY JUDGE

AFFIRMED IN PART; REVERSED IN

PART AND REMANDED

Appellant Anthony O'Neil Hughes appeals the finding of the Montgomery County Chancery Court that he is a delinquent juvenile based upon his committing residential burglary, theft of property, and five counts of first-degree criminal mischief. For these acts, he was ordered to pay restitution to the victims in the total amount of $1,078.58 and to serve one year of probation. Appellant argues on appeal that there is insufficient evidence to support an adjudication of delinquency. We affirm the findings as to residential burglary and theft of property; we reverse the findings as to first-degree criminal mischief and remand for resentencing.

In resolving the question of the sufficiency of the evidence in a juvenile delinquency case, the standard of review is the same as in a criminal case. See McGill v. State, 60 Ark. App. 246, 962 S.W.2d 382 (1998). On appeal, we treat a motion for directed verdict as achallenge to the sufficiency of the evidence. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when reviewed in the light most favorable to the State. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to mere speculation and conjecture. Id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). We do not weigh the evidence presented at trial, as that is a matter for the fact finder. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Residential burglary is defined in Ark. Code Ann. § 5-39-201(a) (Repl. 1997), and it states that a person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Theft of property is defined in Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1997) as 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. First-degree criminal mischief is defined in Ark. Code Ann. § 5-38-203(a)(1) (Repl. 1997) as purposely and without legal justification destroying or causing damage to any property of another.

The evidence presented to the chancery judge, viewed in the light most favorable to

the State, indicated that on October 7, 1999, at approximately noon, a sheriff's deputy was called to a deer camp to investigate theft of and damage to property located at the deer camp. The deer camp was located in a rural area of the county near the intersection of Old Caddo Gap Road and Miles Road; the neighboring houses were separated by no less than one-half of a mile. The deputy was informed that the ignitions on several four-wheelers had been damaged and that a blue 1995 Kawasaki 400 four-wheeler with "4 x 4" on its side was missing. He described the four-wheelers whose ignitions were damaged as a Yamaha Big Bear 350 four-wheeler, a Honda Foreman 400 four-wheeler, and a Yamaha 350 four-wheeler. The misdemeanor criminal mischief counts were for the damaged ignition switches and for damage to the door of a camper. The house located at the deer camp had been broken into and a number of keys were missing, resulting in the residential burglary count. The theft of property count related to the taking of the missing four-wheeler.

Appellant, a seventeen-year-old whose home is located within a mile of the deer camp, was developed as a suspect. At the delinquency petition hearing, the following evidence was presented against appellant. Mr. Lamar Wilson, who lives on Miles Road, testified that he saw appellant standing in Old Caddo Gap Road "right in front of the deer camp" on the morning of October 7, 1999, a couple of hours prior to the report of a crime occurring. He estimated that the deer camp was about thirty feet from the road and that the barn where the four-wheelers were stored was about fifty yards from the road, easily within walking distance of appellant when he saw him. Mr. Wilson stated that he later learned that appellant lived one-half to three-quarters of a mile from the deer camp.

A Garland County Road Department employee, Mr. James Knaper, who was performing his job as a road grader on October 7, testified that he saw appellant on two occasions riding a four-wheeler that day. Mr. Knaper was positive that he saw appellant drive by him on a four-wheeler, which he described as a blue Kawasaki. He stated that the photograph provided to him at trial looked like the one he saw appellant riding. When he saw appellant on the four-wheeler the first time, there was a bicycle strapped onto the back of it. The second time he saw appellant on the four-wheeler, which was about an hour later, there was no bicycle attached. Mr. Knaper added that he had seen appellant two days earlier riding a motorcycle. Mr. Knaper stated that he and another road department employee identified appellant in a photographic lineup as the person who they had seen that day on the four-wheeler.

The missing four-wheeler was found three days later between the deer camp and appellant's house, and the person who found the four-wheeler stated that the ignition switch was "messed up." The owner of the stolen four-wheeler, Jessie Kinsey, testified that whoever had stolen the four-wheeler had possession of a key. Mr. Kinsey did want to be reimbursed for the parts that he had to replace, which were not on the four-wheeler when it was found. Those items were a gun boot and the ignition switch assembly, which cost $168.80 to replace. Evidence of the repair costs to the other four-wheelers and to the camper door was entered into evidence by stipulation, and those receipts totaled $909.78.

At the conclusion of the State's case, appellant's counsel moved to dismiss the charges for lack of sufficient evidence to support any finding of delinquency because therewas no proof that the Kawasaki four-wheeler appellant was riding was the missing four-wheeler, and there was no proof placing appellant on the deer camp premises. The State countered that eye witnesses placed appellant on the stolen four-wheeler and near the premises in the relevant time. The trial judged denied the motion, after which the defense rested. The trial judge then rendered a finding of true on the allegations. Appellant was ordered to serve one year of probation and to pay $1078.58, representing the total amount of reimbursable damages to the owners of the repaired or restored four-wheelers and to the owner of the camper. It is from these findings that appellant appeals.

Appellant argues, as he did in the trial court, that there is insufficient evidence to make a finding of true on these charges. Appellant asserts that this case is analogous to Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999), wherein we held the following evidence insufficient to support a conviction for theft by receiving. Mr. Lindsey was observed at 2:30 a.m. driving a white van, with no windows on the side, up to an apartment in a Little Rock housing project, and a stolen white utility van belonging to Democrat Printing and Lithographing Company was discovered in the same housing project lot sometime after 6:00 a.m. when the company realized that it was missing. We observed that utility vans are not unique, so it was possible that Lindsey could have been present in a white utility van similar to the stolen white utility van on that same day. Therefore, we held that the possibility was not so remote as to render that hypothesis unreasonable. Id. at 73.

While Lindsey v. State, supra, is somewhat analogous, we are not persuaded that the facts are so similar as to require us to reverse. In the case before us today, the evidencepresents a more compelling connection between appellant and the stolen four-wheeler. The witness who saw appellant on the four-wheeler positively identified it as the one presented in the photograph, which depicted a blue Kawasaki four-wheeler, with "4 x 4" on the side, and with gun racks attached. Appellant was positively identified in a photographic lineup, as well as in court, as the person seen driving a four-wheeler that day. This theft took place in a sparsely populated and remote area. This evidence combines to provide sufficient evidence from which the trial judge could have concluded that the allegations were true. We hold that these facts are not insufficient as a matter of law.

Because the owner of the stolen four-wheeler testified that "whoever stole it had a key," we are likewise convinced that this provides substantial evidence to support the court's determination that appellant also committed residential burglary because the keys were taken from the deer camp house. We acknowledge that there were no eyewitnesses who saw appellant inside the camp residence, but his possession of keys to the ignition of the stolen four-wheeler is sufficient circumstantial evidence to place appellant in that residence.

We reverse the findings of true as to all counts of first-degree criminal mischief. Appellant argues that there was no evidence that appellant was ever in contact with the other four-wheelers or the camper. These other four-wheelers were damaged, and the camper door was broken, but we agree that there exists not one piece of evidence, direct or circumstantial, to connect appellant to these criminal acts without resort to speculation and conjecture. Therefore, appellant cannot be held responsible to reimburse the camper owner or the other four-wheeler owners for their costs to repair.

Affirmed in part, reversed in part, and remanded for a disposition consistent with this opinion.

Bird and Vaught, JJ., agree.