Kellino Ware v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KELLINO WARE,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-4

NOVEMBER 3, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION,

(NO. CR2003-2507),

WILLARD PROCTOR, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Kellino Ware was charged with one count of theft of property with a value of $2,500 or more, a Class B felony. A circuit judge sat as the trier-of-fact and found Ware guilty as charged. Ware was sentenced to seven years' probation and fined $350 plus court costs. He was also ordered to pay restitution in the amount of $26,500. On appeal, Ware contends that the circuit judge erred in denying his motion for dismissal because the State failed to introduce substantial evidence that he had the purpose to deprive the owner, Jones Nissan Isuzu, of the property in question. We affirm the conviction.

On May 6, 2003, Ware was employed by Jones Nissan Isuzu in Sherwood, Arkansas. According to testimony from two of Ware's co-workers, Douglas Lenzen and Chuck Pembleton, Ware checked out the keys to a 2003 Nissan Altima on that date. Lenzen testified that employees were occasionally allowed to drive the dealership's cars with permission from management. Both Lenzen and Pembleton testified that Ware did not have permission to take the car on May 6, 2003. Ware did not return to work on the morning of May 7, 2003, or anytime thereafter. Jones Nissan Isuzu reported the vehicle stolen on May 7, 2003. The vehicle was valued at approximately $26,500.

On May 15, 2003, Detective Darin Furhman of the Sherwood Police Department tooka statement from Ware. At trial, Furhman testified as follows:

[Ware] admitted to having the car from Jones Nissan Isuzu. He said that he went to McDonald's and then ran into a young lady who he knew before from being on a drug use binge with. He admitted to taking the car to the Red Roof Inn. He admitted to using a controlled substance at the Red Roof Inn.

According to Furhman, Ware said the car was "taken in lieu of payment [for a] controlled substance" and that he had given the car to a drug dealer.

After the State rested presentation of its case-in-chief, defense counsel moved for dismissal of the theft of property charge. Specifically, defense counsel stated as follows:

Your Honor, at this time the defense would like to make a motion for a directed verdict based on the fact that the State [has] failed to make a prima facie case that Mr. Kellino Ware stole a 2003 Nissan Altima from Jones Nissan and had unauthorized control of the vehicle.

The circuit judge denied the motion.

Ware testified in his own defense and admitted to taking the car on May 6, 2003, with permission to go to lunch and back. According to his testimony, Ware did not return the vehicle to the dealership because it was forcibly taken from him. When asked who had taken the vehicle from him, Ware replied as follows:

I know the guy by the name of Angelo. I didn't know him. I found myself trapped in a situation because I decided to go somewhere I shouldn't have went. Like the statement said, I ran into a young lady that I dealt with previously and I was a recovering drug addict and I relapsed with her. She told me she had a room at the Red Roof Inn, and I figured I could grab my lunch, go over there and get sexual favors from her for money and then make it back to work. When I got there, one thing led to another and I - I relapsed while I was there with her.

Ware further testified that he did not call the police after the car was taken from him because he was "threatened by these young men that, if [he] did call the police, that they were going to bring [him] bodily harm." Ware stated that he did not report the alleged robbery until May 15, 2003, when questioned by police after he was already a suspect in taking the car.

At the close of all of the evidence, Ware renewed his motion for a directed verdict,

which was again denied.

On appeal, Ware contends that the State failed to prove that he had the purpose to deprive Jones Nissan Isuzu of the property in question, a 2003 Nissan Altima valued at approximately $26,500. Specifically, Ware points to his testimony that he was going to drive to lunch and back, and he argues that this testimony proves his intent to return the car. According to Ware, the fact that he borrowed the car does not prove that he intended to deprive Jones Nissan Isuzu of the automobile.

Ware further asserts that the car was stolen from him and that he did not have the purpose to have the car stolen from him. Moreover, Ware argues that the State failed to prove that he acted as an accomplice of the individuals who stole the car from him. Thus, Ware concludes that the State failed to produce substantial evidence to show that he had the purpose to deprive Jones Nissan Isuzu of the property in question.

In order to preserve for appellate review the argument that the State failed to introduce substantial evidence of a defendant's guilt, defense counsel must make a specific motion for dismissal at the close of presentation of all of the evidence. Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000); Ark. R. Crim. P. 33.1(b). The State argues that Ware cannot challenge the trial court's denial of his directed verdict motion because Ware did not make the specific argument that he now makes on appeal. We agree. Furthermore, we would affirm even were we to address Ware's argument on the merits.

A person commits theft of property if he or she 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) (Supp. 2003). Theft of property is a Class B felony if the value of property is$2500 or more. Ark. Code Ann. § 5-36-103(b)(1)(A). A person acts "purposely" with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997). For purposes of Arkansas Code Annotated section 5-36-103(a)(1), to "deprive" means, among other things, "[t]o withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner ...." Ark. Code Ann. § 5-36-101(4)(A) (Supp. 2003). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Watson v. State, ___ Ark. ___, ___ S.W.3d ___ (June 24, 2004).

It is well-settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Watson v. State, supra; Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). In a non-jury trial, a motion for dismissal is the equivalent of a motion for a directed verdict in a jury trial. Green v. State, 79 Ark. App. 297, 300, 87 S.W.3d 814 (2002).

For evidence to be sufficient, there must be substantial evidence to support the verdict, meaning that the evidence must be forceful enough to compel a conclusion one way or the other without having to resort to speculation and conjecture. Watson v. State, supra; Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). In reviewing a challenge to the sufficiency of the evidence, the court will view the evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Watson v. State, supra.

Where there is conflicting evidence, the issue becomes one of credibility to be determined by the trial court. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999). The trial judge is not required to believe the testimony of any witness, especially that of the accused, since he or she is the person most interested in the outcome of the proceedings. Id.

In this case, the evidence viewed in the light most favorable to the State reveals that Ware took the car from the dealership without permission, drove it to lunch, and then drove it to a local hotel where he went on a drug binge. Ware stated that the car was "forcibly taken" from him at the hotel and that he knew who took the car; however, Ware did not report this incident until he became a suspect in the taking of the car and he did not return to work after the vehicle was taken.

The trial court, as the finder of fact, was not obligated to accept Ware's explanation that he did have permission to take the car to lunch and back, that the car was "forcibly taken" from him at the hotel, and that he feared "bodily harm" if he told police about the incident. Thus, we hold that the evidence was sufficient to support Ware's conviction for theft of property.

Affirmed.

Hart and Baker, JJ., agree.