Tommy Simmons v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION III

CA02-759

January 7, 2004

TOMMY SIMMONS AN APPEAL FROM THE PIKE

APPELLANT COUNTY CIRCUIT COURT [JV-2002-10]

v.

STATE OF ARKANSAS HONORABLE TED C. CAPEHEART,

APPELLEE JUDGE

AFFIRMED

Olly Neal, Judge

This is the second time that this case comes before us. We ordered supplementation of the record and rebriefing in Simmons v. State, 80 Ark. App. 426, 97 S.W.3d 421 (2003) due to counsel's failure to include a necessary videotape and counsel's deficient abstracting of the testimony.1 We now reach the merits of appellant's appeal and affirm.

Appellant Tommy Simmons was adjudicated delinquent for shoplifting cigarettes. He was sentenced to six month's probation and ordered to perform forty hours of community service. On appeal, appellant challenges the sufficiency of the evidence.

While a delinquency adjudication is not a criminal conviction, it is based upon an allegation by the State that the juvenile has committed a certain crime. Roberts v. State, 78 Ark. App.103, 78 S.W.3d 743 (2002). When sufficiency of the evidence is challenged on appeal, the court considers only proof that tends to support the finding of delinquency, and it views the evidence in the light most favorable to the State. Hunter v. State, 341 Ark. 665, 19 S.W.3d 607 (2000). The burden of proof in the trial court is beyond a reasonable doubt, and our standard of review is the same as it would be in a criminal case, i.e., whether the court's verdict is supported by substantial evidence. Roberts v. State, supra. Substantial evidence is that which is of sufficient force and character to compel a conclusion one way or the other without resorting to speculation or conjecture. McGill v. State, 60 Ark. App. 246, 962 S.W.2d 382 (1998). Whether the trial court's decision is supported by substantial evidence is a question of law. Roberts v. State, supra.

Appellant was charged with shoplifting under Ark. Code. Ann § 5-36-116 (Repl. 1997)2, which provides that:

[a] person engaging in conduct giving rise to a presumption under § 5-36-102(b) may be detained in a reasonable manner and for a reasonable length of time by a peace officer or a merchant or a merchant's employee in order that recovery of such goods may be effected. The detention by a peace officer, merchant, or merchant's employee shall not render the peace officer, merchant, or merchant's employee criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

Arkansas Code Annotated section § 5-36-102(b) (Repl. 1997) states that:

[t]he knowing concealment, upon his person or the person of another, of unpurchased goods or merchandise offered for sale by any store or other business establishment shall give rise to a presumption that the actor took goods with the purpose of depriving the owner, or another person having an interest therein.

Appellant contends that the State presented insufficient evidence to prove that he committed the crime in question. Specifically, appellant argues that the testimony of the witnesses is inconsistent and unreliable and that the video retrieved from Wright's Food Store shows no crime being committed.

Jeremy Horn, appellant's co-worker and co-conspirator who pled guilty to the offense, testified that on the night in question, he had no ride home, so his father arranged for him to ride with appellant. Horn testified that appellant stated that if Horn did not help him steal the cigarettes, appellant would not give Horn a ride home. Horn testified that he thereafter placed two packs of cigarettes in a cooler so that appellant could take them. Horn testified that he told appellant when he put the cigarettes in the cooler and that he saw appellant walk over to the cooler. He testified that he and appellant went out to the truck when they were leaving and that appellant "pulled them out of his jacket pocket and plastic sack." He further testified there were two packs of cigarettes in the sack.

Jennifer Lassiter, another Wright's Food Store clerk, testified that she had a suspicion that appellant had taken some cigarettes because she had seen him do it before. She overheard appellant and Horn in a conversation where Horn asked appellant if he was hiding "them" and appellant said yes. She was not sure what that conversation concerned, but was convinced after speaking to Jenkins that it involved the stealing of cigarettes.

Sabrina Jenkins, a clerk at Wright's Food Store, testified that she was there on the night of this incident. She further testified that:

[Appellant] went and got a plastic bag and he went to the juice cooler. He got the plastic bag at the back. I saw him do that. He took the plastic bag to the juice cooler. It was the same cooler that I saw [Horn] walk towards. I could not see in the cooler, but whenever [appellant] got up, he had this bag rolled up and he had cigarettes inside. He squatted down at the cooler. He came back with juice in his hands. The plastic bag was wrapped up around the cigarettes and was in the bag. I saw that in [appellant's] hand. I am sure it was cigarette in the bag.

Considering only the proof that tends to support the finding of delinquency and viewing the evidence in the light most favorable to the State, we hold that substantial evidence supports the court's finding of delinquency. Accordingly, we affirm.

Affirmed.

Hart and Baker, JJ., agree.

1 In Larry v. Grady Sch. Dist., 82 Ark. App. 185, 119 S.W.3d 528 (2003), we acknowledged that Simmons should have been summarily affirmed, as there was no proof that the absence of the videotape was the result of error or accident by the court reporter or circuit clerk.

2 The State points out in its brief that shoplifting is not an offense within the jurisdiction of the juvenile court because there is no punishable offense listed in Ark. Code Ann. § 9-27-303 (14)(A)(Supp. 2003). That section provides:

(14) "Delinquent juvenile" means any juvenile:

(A) Ten (10) years old or older who has committed an act other than a traffic offense or game and fish violation which, if the act had been committed by an adult, would subject the adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state or who has violated § 5-73-119[.]

The State, as does the Court, understands the offense alleged in the delinquency petition to be a misnomer for theft of property under Ark. Code. Ann. § 5-36-103(a)(1) (Supp. 2003), which provides in part:

(a) A person commits theft of property if he or she:

(1) 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[.]

(5) Theft of property is a Class A misdemeanor if:

(A) The value of the property is five hundred dollars ($500.00) or less[.]