Darrell Gentry v. State of Arkansas

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ar04-144

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-144

November 17, 2004

DARRELL GENTRY AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CA01-2671]

V. HON. WILLARD PROCTOR, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Darrell Gentry appeals from his conviction for theft by receiving. He asserts that the State failed to prove that he knew or had good reason to know that the vehicle he was driving was stolen. We disagree and affirm.

A 1989 Ford F-150 truck was stolen from R&B Auto Sales on December 13, 2000. At the time, Bill Waller, an R&B employee, had the only known key to the truck. Waller retained the key at R&B's offices during the time the truck was missing, and testified that he never gave anyone permission to drive the truck. When the truck was stolen, the front of the truck sustained damage because it was driven through a cable stretched across the dealership's entrance. According to Waller, when the car was returned, the damage to the front of the vehicle remained and the steering column had also been damaged.

Slightly over four months later, on or around April 18, 2001, the truck was recovered in appellant's possession. Pulaski County Deputy Mark Swaggerty observed appellant parked on the side of the road in a location known for illegal dumping. Swaggerty discovered that appellant had an outstanding warrant and that the license plate on the truck was issued to another vehicle. Swaggerty testified that he remembered that the truck was "kind of beat up," but he did not remember the exact nature of the damage. Swaggerty could not remember whether appellant had a key to the truck, which was towed.

At the close of the State's case, appellant moved for a directed verdict on the ground that the State did not establish a prima facie case that he knew or should have known that the truck was stolen. The trial court denied the motion.

Appellant thereafter presented the testimony of Sonny Taylor, who stated that appellant had worked for him repairing automobiles. Taylor testified that in 2001, while appellant was helping Taylor to build a house, appellant had possession of a blue and white Ford truck "for quite a few months," and he had seen the truck on "numerous occasions." Taylor stated that appellant was replacing the clutch on the truck. Taylor also stated that the truck was at his brother's salvage yard and that he never saw appellant in the truck. However, Taylor also provided conflicting testimony regarding the owner of the truck. He first testified that he never saw the owner of the truck; on redirect examination, he stated that he saw appellant and "another gentleman having a conversation about getting his clutch" repaired.

Appellant thereafter renewed his motion for a directed verdict on the same grounds and the trial court again denied the motion. The trial court found that because the steering column was damaged and the only key was held at the dealership, appellant should have known the truck was stolen. Accordingly, the court found appellant guilty of theft by receiving and sentenced him to serve six years in the Arkansas Department of Correction. This appeal followed.

Appellant's sole argument is that the trial court erred in denying his motion for a directed verdict because the State failed to show that he knew or should have known that he was in possession of a stolen vehicle. He maintains that the only evidence supporting that he should have known the car was stolen was the damaged column. Citing Doubleday v. State, 84 Ark. App. 194, 138 S.W.3d 112 (2003), and Hall v. State, 299 Ark. 209, 772 S.W.2d 317 (1989), he also asserts that the fact that the vehicle was missing for more than four months is "critical" because the statute governing stolen property speaks to the possession or control of property that is "recently stolen."

Appellant maintains that the damaged steering column, when coupled with the period of time in which the vehicle was missing, does not constitute substantial evidence that he knew or should have known the vehicle was stolen. He notes there was no evidence to show that he obtained possession of the vehicle "under nefarious circumstances" and argues that the facts do not exclude the reasonable hypothesis that the truck had passed through multiple owners. He also asserts that the State failed to prove that he did not have a key, and the fact that he did not attempt to flee from and did not struggle with the police also provides an alternative hypothesis that appellant did not know the truck was stolen.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). On appeal, we review the evidence in a light most favorable to the State and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial; however, where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001).

The applicable statute in this case provides, in relevant part, that:

(a) A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen.

(b) For purposes of this section, "receiving" means acquiring possession, control, or title or lending on the security of the property.

(c) 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 or she knows or believes that the property was stolen.

Ark. Code Ann. ยง 5-36-106 (Supp. 2003).

We affirm because substantial evidence supports appellant's conviction. First, the State was not required to prove that appellant stole the truck or obtained it under "nefarious" circumstances because appellant was not charged with theft of property. Second, even if the truck had passed through multiple owners, this would not preclude a finding that appellant received stolen property. Regardless, Taylor's testimony that appellant had the truck for several months when it was only missing for approximately four months seems to negate the possibility that the truck had passed through multiple owners. Thus, the testimony of appellant's own witness establishes appellant's possession of the truck much earlier than the date it was recovered, and closer in time to the date that it was stolen.

Third, appellant's argument regarding the four-month delay between the theft of the vehicle and its recovery is to no avail because the State is not required to prove the truck was "recently stolen" in order to obtain a conviction. Rather, the State obtains the benefit of the presumption in section 5-36-106(c) only if it shows the property was recently stolen. See, e.g., Doubleday v. State, supra (affirming conviction for theft of property where the State failed to prove the property was recently stolen).

In any event, substantial evidence supports appellant's conviction, even if the State does not receive the benefit of the presumption in section 5-36-106(c). Despite appellant's assertion, the evidence goes well beyond the mere fact that the steering column had beendamaged.

The evidence also demonstrates that the truck was found in appellant's possession and control; that he was the driver of the truck; that he had possessed the vehicle for "several months" when the vehicle had only been missing for approximately four months; that appellant had experience repairing cars and was certainly aware that the front of the vehicle and the steering column had been damaged; that the truck was registered to another owner; and that the license plate on the truck was registered to another vehicle.

It is true that Officer Swaggerty could not remember whether appellant had a key, but the trial court found that the dealership possessed the only key, based upon Waller's testimony. Given these facts, the trial court was not required to resort to speculation and conjecture to conclude that appellant was guilty, even though appellant did not flee and was not uncooperative with officers. Nor was the trial court required to believe Taylor's testimony that appellant had the truck in his possession "for several months" for the purpose of repairing the truck's clutch. Doubleday v. State, supra (noting the assessment of witness credibility is for the fact-finder).

Finally, the cases cited by appellant, Doubleday v. State, supra, Hall v. State, supra, and Lindsey v. State, 68 Ark. App. 70, 3 S.W.2d 346 (1999), do not further appellant's argument. In Doubleday, supra, as noted above, we affirmed the conviction even though the State did not prove the property had been recently stolen. Further, Hall v. State, supra, is inapposite because there was no issue in that case concerning the lapse of time between the date the property was stolen and the date it was recovered. In Lindsey v. State, supra, we reversed a conviction for theft by receiving a stolen, white utility van where the only evidence was that the defendant had been seen driving a white utility van in the same housing project in which the stolen van was later found. In Lindsey, we reasoned that white utility vans were common and there was no proof that the van the defendant was driving hours earlier was the same van. Lindsey is easily distinguishable from the instant case. Here, there is no doubt that appellant was driving the stolen vehicle and had possession and control of the vehicle at the time it was recovered by the police or that the vehicle found was the same vehicle that was stolen.

We are not convinced by appellant's arguments. Accordingly, we affirm his conviction for theft by receiving.

Affirmed.

Crabtree and Baker, JJ., agree.