Richard Brandon v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

RICHARD BRANDON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR05-20

August 31, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR2004-263]

HON. WILLARD PROCTOR, JR.,

JUDGE

AFFIRMED AS MODIFIED

Robert J. Gladwin, Judge

Appellant Richard Brandon was convicted in a bench trial of theft by receiving and sentenced to five years' probation, required to complete an unspecified amount of community service, and ordered to pay a $350 fine, restitution in the amount of $2,500, and court costs. Appellant raises two points on appeal: (1) the trial court erred in denying his motion for directed verdict because the evidence failed to show that he knew or should have known the truck was stolen, and (2) the trial court erred in imposing restitution that was not proven to be causally linked to the charge against him. We affirm as modified.

On August 28, 2003, Janis Ivy's white GMC truck was stolen from her workplace. It is undisputed that appellant is not the individual who initially stole the vehicle. On September 5, 2003, eight days later, one of Ms. Ivy's friends called to tell her that they had seen the truck in the front yard of a house. Ms. Ivy called the police, and officers found the truck at the reported location. When they drove up to the truck, appellant was discovered either under the hood or leaning over the engine compartment. The engine was partially removed from the vehicle and attached to a hoist. The truck was badly damaged, and there were loose parts around it, which the officers put into the back of the truck prior to having it towed. When asked, appellant was unable to tell officers the identity of the owner of the truck. Insurance paid for the necessary repairs to the vehicle, less a $500 deductible for which Ms. Ivy was responsible.

At the bench trial, appellant moved for a directed verdict after the State's case-in-chief. The motion was denied, as was the renewal of the motion made at the close of all the evidence. The trial court subsequently found appellant guilty of theft by receiving. This appeal followed.

I. Denial of Motion for Directed Verdict

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. Witness credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness's testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. LeFever v. State, __Ark. App. __, __ S.W.3d __ (May 18, 2005). The trial court was free to believe all or part of any witness's testimony and could resolve questions of conflicting testimony and inconsistent evidence by choosing to believe the State's witnesses' accounts of the facts rather than appellant's. See Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001).

Appellant alleges that the trial court erred in denying his motions for directed verdict because the State failed to produce substantial evidence that he knew or should have known that the truck was stolen. Theft by receiving is defined in Ark. Code Ann. § 5-36-106(a) as follows:

(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.

The statute also creates a presumption in subsection (c) as follows:

(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 knows or believes that the property was stolen.

See also Doubleday v. State, 84 Ark. App. 194, 138 S.W.3d 112 (2003). Appellant admits that the presumption does not fall in his favor in this matter, but he maintains that the State put forth no evidence that he knew or should have known the truck was stolen. There was no evidence presented of a typical stolen-vehicle situation, such as a cracked steering column, a broken window, some indication of a transaction but no related bill of sale, an incorrect license plate, etc. See id. Additionally, appellant urges that there was no evidence of his having a "guilty mind." He neither attempted to flee nor struggled with the police. See Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985). He did not use a false name or try to evade responsibility. See Austin v. State, 26 Ark. App. 70, 760 S.W.2d 76 (1988). He argues that, due to the extremely thin evidence presented by the State, speculation and conjecture were required to reach the conclusion that he knew or should have known that the truck was stolen, even in light of the statutory presumption.

The State maintains that appellant's challenge was not preserved for our review because he changed the basis for his argument. At the close of the State's case, appellant moved for a directed verdict on the ground that there had not been any testimony that appellant "was in possession of any stolen property." Now, on appeal, he bases his argument on a challenge to the State's evidence as to whether he knew or should have known that the truck was stolen. Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a motion for dismissal state the specific grounds in order to preserve the challenge. See Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). Moreover, appellant may not change his grounds on appeal and is limited to the scope and nature of the objections presented at trial. Porter v. State, __ Ark. __, __ S.W.3d __ (Sept. 16, 2004). Accordingly, we decline to consider this argument.

Alternatively, there is substantial evidence to support the conviction under the above-described standard of review. It is undisputed that the truck in question had been stolen from Ms. Ivy. Officers Michael Ford and Patrick Hall testified that appellant was working on, and appeared to be removing parts from, the truck when they responded to the call. When questioned by the officers, appellant was unable to identify the owner of the truck. His only argument, which he did not mention until trial, was that some other unnamed man was there working on the truck and that the officers were lying. Under the statutory presumption found in Ark. Code Ann. § 5-36-106(c), there is substantial evidence to affirm on this point.

II. Imposition of Restitution

Appellant next argues that the trial court erred in awarding $2,500 in restitution to Ms. Ivy because: (1) there is no evidence that she actually suffered a loss in that amount, (2) even if there was such a loss, there is no proof that appellant's offense was the cause of the pecuniary injury; (3) the award was not authorized by statute. See State v. Fountain, 350 Ark. 437, 88 S.W.3d 411 (2002) (stating that sentencing is entirely a statutory matter). Arkansas Code Annotated section 5-4-205 authorizes an award of restitution but requires that the amount correspond to the amount of pecuniary loss caused by the crime. Appellant maintains that this statutory causality requirement is missing in this case. There was no testimony from Ms. Ivy, or anyone else, as to the $2,000 loss of "items," and it appears that the trial judge based his award strictly on a comment from the prosecutor. Additionally, it is undisputed that someone other than appellant initially stole the truck from Mrs. Ivy, and no evidence was presented that he stole any of the missing items that might have been included in that amount. See Fortson v. State, 66 Ark. App. 225, 989 S.W.2d 553 (1999).

In his reply brief, appellant makes reference to Simmons v. State, __ Ark. App. __, __ S.W.3d __ (Mar. 16, 2005), in which this court reversed an award of restitution where the accused was not proven to have caused a loss to the victim. Appellant maintains that the cases are very similar, in that he was not charged with, or convicted of, stealing $2,000 worth of items from the truck. He further maintains that the facts in the instant case more strongly support the reversal of the restitution award because Ms. Ivy never even testified as to the loss. He asserts that the award appears to have been based "solely on the uncorroborated, unsworn assertion of the deputy prosecuting attorney."

The State argues that appellant failed to preserve this issue for appellate review because he failed to specifically object to any portion of the sentence that was imposed by the trial court. Appellant is bound on appeal by the scope and nature of the objections and arguments presented at trial, and we will not address arguments that were not raised at trial. Milton v. State, 83 Ark. App. 42, 137 S.W.3d 402 (2003). The State argues that a claim that a trial court erred in imposing restitution falls within that general rule. See Cotnam v. State, 36 Ark. App. 109, 819 S.W.2d 291 (1991). Prior to the court's announcement of appellant's sentence, the following colloquy occurred:

THE COURT: Okay. Any restitution?

DEPUTY PROSECUTING ATTORNEY: Your Honor, the insurance covered most of her expense. She had a $500 deductible and she estimates her other expenses to repair the vehicle around $2,000. To be clear, Your Honor, those are for items that are, that were in the car that were lost also.

DEFENSE COUNSEL: I believe it's clear that Mr. Brandon was not the person that took the car. So he should not be responsible for those items.

The trial court then proceeded to announce the above-described sentence, after which there was no response or objection from appellant's counsel. The only argument made was prior to the trial court issuing the order. Appellant maintains that the trial court was clearly aware of appellant's objection to the award of restitution with respect to the $2,000 worth of items in the car that were lost as a result of the theft, and consequently, the policy concerns applicable to the contemporaneous-objection requirement were met. See Hamilton v. State, 348 Ark. 532, 74 S.W.3d 615 (2002). Appellant alleges that a contemporaneous objection was made to the restitution award, but that even if this court finds otherwise, the restitution should still be overturned as an illegal sentence. See Mayes v. State, 351 Ark. 26, 89 S.W.3d 926 (2002); State v. Fountain, supra. We hold that appellant does not attempt to change the basis of his argument with respect to the award. The essence of appellant's argument raised below is the same as the argument that he now presents to this court: that the order of restitution is partially based on items lost from the car for which he was neither charged nor in any way connected with their disposition. We find that appellant's argument was therefore properly preserved.

The purpose of awarding restitution pursuant to Ark. Code Ann. § 5-4-205 is meant, as far as is practicable, to make the victim whole in relation to the crime committed. See Ark. Code Ann. § 16-90-301; Simmons v. State, supra. The determination of the amount of loss is a factual question to be decided by the preponderance of the evidence. Ark. Code Ann. § 5-4-205(a)(3)(A). The trial court erred in ordering appellant to pay restitution for the theft of $2,000 worth of items for which he had not been charged and to which he did not plead guilty or no contest. Appellant was convicted of theft by receiving in connection with the white GMC truck, which he was in the process of dismantling at the time officers confronted him. While there is evidence to support the award of $500 to cover the insurance deductible paid by Ms. Ivy related to the repair of the vehicle, there is insufficient evidence to support the award of $2,000 for various, unsubstantiated items that the prosecutor claimed were lost as a result of the theft. We affirm on this point as modified to reflect an award of restitution in the amount of $500.

Affirmed as modified.

Neal and Baker, JJ., agree.