Rodney J. Tarver v. State of Arkansas

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ar03-970

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RODNEY J. TARVER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-970

September 1, 2004

APPEAL FROM THE WHITE COUNTY CIRCUIT COURT

[CR 02-676]

HON. ROBERT EDWARDS, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

On December 31, 2002, the State charged appellant Rodney Tarver with theft by receiving, alleging that he unlawfully and feloniously retained property (a computer having a value in excess of $2500) belonging to Jeremiah Richards, knowing or having good reason to believe that the property was stolen. After an April 8, 2003, bench trial, appellant was found guilty and was sentenced to sixty months' imprisonment. A judgment and commitment order was entered on May 8, 2003, and a timely notice of appeal followed. On appeal, appellant contends that the evidence is insufficient to support the conviction. We affirm.

At trial, Mr. Richards testified that he was a student at Harding on December 9, 2002. He explained that he had taken his backpack with him to the cafeteria, which contained his Apple Power Book G4 laptop computer, Apple Icon MP3 Player, and Canon digital camera. He stated that he had paid $4000 for the computer the previous year, and that on December 9, 2002, it was worth in excess of $2500. There was also a stipulation by the parties that the value of the property contained in the backpack exceeded $2500 and that Mr. Richards's backpack and the contents were stolen by Kimball Mitchell, who pled guilty to the crime.

Ms. Mitchell testified that on December 9, 2002, she received a phone call from appellant saying that he had something for her to do. He took her to the Harding cafeteria and told her to find a big and heavy bag to take because it would probably have something in it that they could use. After she found one, they went to the car to see what was in it. It contained a laptop, radio, and other items. She recalled that she and appellant discussed where they could sell the computer. Appellant, according to Ms. Mitchell, told her that he knew of plenty of people who would want to buy the computer. Ms. Mitchell stated that appellant took the computer with him. The next day, appellant and Ms. Mitchell took the computer to a pawn shop, but the pawn shop owner, Jason Anderson, would not take it because there was no power cord and the battery had run down because they had been playing with it. Ms. Mitchell testified that appellant was the one who wanted to sell the computer, and that it was her idea to go to the pawn shop where she had previously traded. Ms. Mitchell stated that she had the computer (after appellant had it for two days) and was unable to sell it.

Jason Anderson, owner of the shop named Trader J's General Store, testified that he could remember December 9, 2002, because it was the day his uncle passed away and he remembered receiving a phone call while he was in Little Rock at the hospital. He stated that a man called his cellular phone and asked if he wanted to buy a computer, for which the caller claimed to have a receipt. They arranged to talk when he returned to Searcy and to meet around six o'clock in the evening at the store. He testified that when he arrived at the store, appellant and Ms. Mitchell were parked in front of the store. He knew Ms. Mitchell's face from two previous dealings. When he encountered them, appellant said that he was the one who had called him earlier about the computer. Mr. Anderson stated that appellant did the talking to sell the computer and that Ms. Mitchell only talked towards the end. Mr. Anderson stated that a red flag was raised when they did not have the power cord, and he told them he was not interested. Up until this time, he spoke with appellant. Then Ms. Mitchell asked what he would give them for the computer, and he stated that he would only be interested if they had the cord and the receipt. After appellant and Ms. Mitchell left, Officer Tom McGee arrived at the store and took a statement from Mr. Anderson. Mr. Anderson did not know appellant's name until he spoke with Officer McGee. Before Officer McGee had left the parking lot, appellant had called Mr. Anderson and told him not to talk to the police.

On cross-examination, Mr. Anderson was questioned about the statement he gave to police, in which he failed to mention that appellant talked during the encounter at the store. In addition, he testified on re-direct that he told police that the caller sounded like a "drunk white guy acting black with kind of a feminine overtone." He stated that when appellant came into the shop he recognized appellant's voice as the voice he heard on the phone, although he did not know his name.

Testifying in his defense, appellant stated that he went to Harding to fill out a job application and that he did not know that Ms. Mitchell was going to steal a backpack. She was supposed to stay in the car. He stated that he did not see Ms. Mitchell with a backpack and that she must have put it in the trunk. He testified that he was unaware that a backpack was stolen until a detective came to his house. Appellant denied ever calling Mr. Anderson about a computer, but stated that he had called him about a watch on one occasion.

At the conclusion of trial, the judge found appellant guilty of theft by receiving, stating that he found Ms. Mitchell and Mr. Anderson to be more credible than appellant. Appellant was sentenced to sixty months' imprisonment. From that conviction, comes this appeal.

For his sole point of appeal, appellant challenges the sufficiency of the evidence to support the conviction. A motion to dismiss, identical to a motion for a directed verdict in a jury trial, is a challenge to the sufficiency of the evidence. Green v. State, 79 Ark. App. 297, 87 S.W.3d 814 (2002). On appeal of the denial of a motion for dismissal, the sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence, whether direct or circumstantial, must be of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). In determining whether the evidence was substantial we consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Id.

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 1997). The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen. Ark. Code Ann. § 5-36-106(c) (Repl. 1997). For his motion for directed verdict, appellant argued (1) that there was no evidence that appellant ever had the computer in his possession other than the statement of Ms. Mitchell, who pled guilty to stealing the computer, and (2) that Mr. Anderson's testimony was conflicting in regard to whether appellant participated in trying to dispose of the computer.

Appellant's argument amounts to nothing more than a challenge to the credibility of the witnesses and to conflicts in the testimony. Here, Ms. Mitchell testified that appellant knew that she had stolen the computer that they tried to sell to Mr. Anderson. She also stated that appellant had the computer in his possession for two days before they tried to sell it. Mr. Anderson testified that appellant was in Trader J's in an attempt to sell the computer. Although appellant calls into question Ms. Mitchell's credibility and the conflicts in Mr. Anderson's testimony and his statement given to police after the attempted sale, resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002). Therefore, we affirm.

Affirmed.

Baker and Roaf, JJ., agree.