Robert Steven Ciesielski v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION IV

ROBERT STEVEN CIESIELSKI

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-154

December 11, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR2000-3280]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant, Robert Ciesielski, was found guilty by a Pulaski County jury of battery in the second degree and theft of property. The value of the property was found to be in excess of $500 but less than $2500; therefore, that offense was a Class C felony. Ciesielski's only point on appeal is that the State failed to prove that the property stolen had a value of more than $500 but less than $2500. We affirm.

Appellant and the victim, Matthew Tatus, were acquaintances in August 2000. On the night of the incident, the two had been to clubs with friends, and because appellant had ridden to the last club with Tatus, Tatus agreed to take appellant where he wanted to go when they left the club. The two ended up on a dirt road off Highway 10 engaging in homosexual activity, during which appellant attacked Tatus with a knife. Tatus was able to get away from appellant and was picked up by a person who was driving down the road. As Tatus and the driver of the vehicle were leaving the scene of the incident, Tatus saw appellant driving off in his car, although Tatus had not given appellant permission to take the car.

Prior to the start of trial, the State orally moved to amend the felony theft of property count, which initially alleged that appellant only stole the car, to include "and CDs valued over $500." Appellant's counsel had no objection, stating that the prosecutor had informed him of his intention to modify the felony theft of property count to include compact discs, and he did not believe that it changed the classification of the offense.

At trial, Tatus testified that he owned a 1992 Ford Tempo that had been given to him in 1999. He said that at the time he received the vehicle, it had in excess of 100,000 miles on it, and it had approximately 120,000 miles on it when appellant took it. He estimated that the car was worth $750 when appellant took it; however, he conceded that he had no experience with cars and had not purchased the vehicle. Several pictures of the car were introduced into evidence at the trial.

Additionally, Tatus testified that his permanent collection of compact discs was in the car when appellant took it, as well as a compact disc player. He estimated that he had about 100 compact discs in the car at the time it was stolen, and he had collected most of the compact discs from 1997 to 2000. He estimated that he paid sixty dollars for the compact disc player, and that most of the compact discs were purchased new for fifteen to twenty dollars each.

At the close of the State's case, appellant's attorney made the following motion:

Just one other thing, Your Honor, and I forgot to mention this originally, and I would like to just point this out. That Mr. Tatus in his direct testimony indicated that the value of this vehicle, I believe, was $750.00, and yet the testimony was that apparently this vehicle was given to him. Cross examination, Mr. Tatus conceded that he had no expertise in automobiles, and, therefore, I think he would be unavailable to give a value regarding the vehicle, and, therefore, the State's not met its burden of showing that this particular property was in excess of over $500.00, less than $2500.00. And, therefore, the theft of property charge should be a misdemeanor.

The trial court denied the directed-verdict motion. The defense did not call any witnesses. Appellant renewed his directed-verdict motion, which was again denied. Appellant now argues this point on appeal, contending that the State failed to introduce substantial evidence that Tatus's vehicle and its contents had a market value of more than $500 at the time appellant exercised control over the property.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Id.

Appellant argues that Tatus's testimony concerning the value of his compact disc collection was insufficient to establish its market value. However, this argument was notmade to the trial court, and arguments made for the first time on appeal will not be addressed. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).

Appellant also contends that the State did not provide proof of the market value of Tatus's car. He argues that Tatus's belief that his car was worth $750 did not prove the market value of the car, leaving the jury to speculate as to the vehicle's market value.

"Value" is defined as the market value of the property at the time and place of the offense, or, if the market value cannot be ascertained, the cost of replacing the property within a reasonable amount of time after the offense. Ark. Code Ann. § 5-36-101(11)(A) (Repl. 1997). Value may be sufficiently established by circumstances clearly showing a value in excess of the statutory requirement. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). In Jones v. State, 6 Ark. App. 7, 9, 636 S.W.2d 880, 881 (1982) (citing Polk v. State, 252 Ark. 320, 478 S.W.2d 738 (1972)), this court stated, "While the jury may not substitute its knowledge for evidence, they are not required to set aside their common knowledge and may consider the evidence presented them in accordance with their own observation and experience in the affairs of life."

From the testimony elicited at trial regarding the 1992 Tempo and the pictures introduced into evidence, the jury could certainly infer that the car had some value. This evidence, when considered in conjunction with Tatus's testimony regarding the value of his compact discs and compact disc player, provides substantial evidence from which a jury could determine that the value of the property taken was in excess of $500.

Affirmed.

Neal and Baker, JJ., agree.