Vernon E. Price v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

VERNON E. PRICE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-436

March 12, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. CR 2001-507]

HON. DAVID BOGARD,

JUDGE

AFFIRMED

Vernon E. Price was convicted at a jury trial of theft of property valued at $2,500 or more in connection with the theft of a safe and a video recorder from a Texaco MaxMart store. He was sentenced as a habitual offender to thirty-five years in the Arkansas Department of Correction. He contends that the trial court erred in denying his motion for a directed verdict of acquittal. We affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict, and will affirm if there is any substantial evidence to support the finding of guilt. Id. Evidence,

whether direct or circumstantial, is substantial if it is of sufficient force that it would compel a conclusion one way or the other without recourse to speculation and conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000).

A person commits theft if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1997). At the time of this offense, theft of property was a Class B felony if the value of the property was $2,500 or more. Ark. Code Ann. § 5-36-103(b)(1)(A) (Repl. 1997).

Appellant first contends that the evidence is insufficient to support a finding that he took or exercised unauthorized control over the property. We cannot agree. The record in this case reflects that a safe and video recorder were stolen during a burglary of a Texaco MaxMart store in the early morning hours of April 15, 2000. There was testimony that the $2,000 safe contained over $4,000 in cash and that the video recorder was valued at more than $1,000. There was also testimony that, although the store was equipped with a security alarm system, all indications were that the alarm was not triggered when the store was broken into. At the time of the theft, appellant and his girlfriend, Patricia Gross, shared a house on Meadowcliff Street in Little Rock. Ms. Gross worked at the MaxMart for a few weeks in February and March 2000, and had access to the code needed to activate and deactivate the security alarm. She was terminated about four weeks prior to the theft. Appellant's aunt, Laura Price, testified that appellant came to her home one night in May 2000 and told her husband and her that he (appellant) and his brother had stolen a safe andburied it in the back yard of his house on Meadowcliff. Ms. Price did not tell anyone about appellant's admission until the following January, immediately after which the police were contacted and the MaxMart's safe was, indeed, discovered buried in the back yard. We conclude that this proof is substantial evidence that appellant took the property in question.

Appellant next contends that the State failed to prove that the value of the stolen property equaled or exceeded $2,500. However, appellant failed to move for a directed verdict on this ground at trial, and he cannot raise the issue for the first time on appeal. Ark. R. Crim. P. 33.1; Roseby v. State, 329 Ark. 554, 953 S.W.2d 32 (1997).

Affirmed.

Robbins and Crabtree, JJ., agree.