Heard v. State
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Cite as 2009 Ark. 546
SUPREME COURT OF ARKANSAS
No. CR09-647
DEMETRIUS HEARD
Opinion Delivered November 5, 2009
APPELLANT,
AN APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT, NO.
CR 2007-478, HONORABLE LANCE
L. HARSHAW, CIRCUIT JUDGE
VS.
STATE OF ARKANSAS
CIRCUIT COURT AFFIRMED;
COURT OF APPEALS REVERSED
APPELLEE,
ELANA CUNNINGHAM WILLS, Associate Justice
Demetrius Heard appeals his conviction for aggravated robbery following a bench trial.
He asserts that the trial court erred by denying his motion for a directed verdict. We affirm
the circuit court and reverse the court of appeals.
On October 18, 2007, Lonoke police responded to a 911 call from Tommy
Townsend, who alleged that Heard pointed a pistol at him and demanded that Townsend
repay a debt of two dollars.1 Heard was arrested and charged with aggravated robbery. At
trial, Townsend testified that Heard threatened him with a gun and demanded two dollars that
he claimed Townsend owed him, and that he did, in fact, owe a debt to Heard. According
to Heard’s testimony, he and Townsend “got into it over two dollars” several times in the
Townsend reported to the police officer responding to his 911 call that Heard pointed
a “chrome pistol” at him. At trial, Townsend testified that he believed the gun was real at
the time of the incident, but that Heard later apologized to him, and as a result Townsend
came to believe that the gun Heard used was a toy.
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past.
After the State rested its case during the bench trial, Heard moved for a directed
verdict on the charge of aggravated robbery. Specifically, Heard argued that aggravated
robbery requires evidence of a threat of violence and theft, which involves an intent to take
the property of another; therefore, because Townsend owed him two dollars, there was no
theft. Heard renewed his motion for a directed verdict at the close of the defense’s case,
citing Daniels v. State, 373 Ark. 536, 545, 285 S.W.3d 205, 211 (2008), in which this court
held that “the law in Arkansas is that recovering gambling losses is not theft.” The trial court
again denied the motion, concluding that the holding in Daniels and a case cited
therein—Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940)—were specifically limited
to gambling losses. Finding Heard guilty of aggravated robbery, the trial court sentenced him
to a term of ten years’ imprisonment as a habitual offender.
Upon review, the court of appeals reversed Heard’s conviction in Heard v. State, 2009
Ark. App. 425, ___ S.W.3d ___. The court of appeals stated that, “[t]he crucial question in
this case is whether the prosecution presented evidence to show that the two dollars was ‘the
property of another person”—an element of theft under Ark. Code Ann. § 5-36-103(a)(1)
(Repl. 2006). Id. at ___, ___ S.W.3d at ___. Relying upon Davidson, supra, the court of
appeals held that “there was no substantial evidence that [Heard] threatened violence in order
to obtain ‘the property of another’” based on Townsend’s concession that Heard “had a right
to the money without asserting any right of his own.” Id. at ___, ___ S.W.3d at ___.
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The State filed a petition for review of the court of appeals’s decision, asserting that the
decision was legally erroneous because it relied on and extended precedent that was limited
to theft in the context of the recovery of gambling losses. Further, the State contended that
the General Assembly expressly overruled this court’s decision in Daniels with Act 460 of
2009. This court granted the State’s petition for review; accordingly, we review the case as
though it was originally filed in this court. Hinojosa v. State, 2009 Ark. 301, ___ S.W.3d ___.
For his single point on appeal, Heard argues that the circuit court erred in denying his
motion for a directed verdict because there was insufficient evidence to support his conviction
for aggravated robbery. A challenge to the sufficiency of the evidence asserts that the verdict
was not supported by substantial evidence. Flowers v. State, 373 Ark. 119, 121, 282 S.W.3d
790, 792 (2008). Substantial evidence is evidence of sufficient force and character that
without resorting to speculation and conjecture compels with reasonable certainty a
conclusion one way or the other. Id. We review the evidence in a light most favorable to the
State and consider only the evidence that supports the verdict. Id.
A person commits aggravated robbery if he commits robbery and “[r]epresents by word
or conduct” that he is armed with a deadly weapon. Ark. Code Ann. § 5-12-103(a)(2) (Repl.
2006). Under Ark. Code Ann. § 5-12-102(a), a person commits robbery if he “employs or
threatens to immediately employ physical force upon another person” with the purpose of
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committing felony or misdemeanor theft.2 Theft is committed when a person knowingly
“[o]btains the property of another person, by deception or by threat, with the purpose of
depriving the owner of the property.” Ark. Code Ann. § 5-36-103(a)(2) (Repl. 2006). Heard
specifically argues as follows:
Given that [Townsend] owed the money to [Heard], [Heard] must have a
possessory interest in the money. That [Heard] has a possessory interest in the
money reclaimed, even at gunpoint, the facts cannot support the elements of
theft, and thus there was no theft. If there was no theft, there could be no
robbery, which would preclude a conviction of armed robbery.
In support of this argument, Heard relies entirely on Daniels. Prior to addressing Daniels, as
an initial matter we note that Heard’s focus on his own alleged “possessory interest” in the
money is contrary to the statutory definition of “property of another.”
Arkansas Code Annotated § 5-36-101(7), a provision of the subchapter governing
theft, defines “property” as “severed real property or tangible or intangible personal property,
including money or any paper or document that represents or embodies anything of value.”
The same statute, adopted as part of the 1975 Criminal Code, defines “property of another
person” as “any property in which any person or the government other than the actor has a
possessory or proprietary interest.” Ark. Code Ann. § 5-36-101(8)(A). Heard’s focus on his
own asserted “possessory interest” is, therefore, misplaced. The applicable statute disregards
Heard’s claimed interest and focuses on the interest of any other person than Heard.
Misdemeanor theft, as at issue in this case, involves property with a value of $500.00
or less. Ark. Code Ann. § 5-36-103(b)(4)(A).
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For example, in Phillips v. State, 297 Ark. 368, 761 S.W.2d 933 (1988), the appellant
challenged his conviction for theft under § 5-36-103, arguing that there was insufficient
evidence that he took the “property of another person” of a value more than
$200.00—required to meet the statute’s definition of a Class C felony at the time—when only
$200 taken from his victim’s purse belonged to her, and she had an additional $100 belonging
to her church due to her position as treasurer. This court rejected the appellant’s argument,
stating that
“Property of another person” means any property in which any person ... has
a possessory or proprietary interest....” Here, the victim has a proprietary
interest in the $200.00 which was her own money, and a possessory interest in
the $100.00 which she was holding as treasurer for her church. Under this
definition the evidence was sufficient to convict the appellant.
Phillips, 297 Ark. at 369, 761 S.W.2d at 933. The pertinent inquiry under our statutory
definition, therefore, is not Heard’s asserted interest in the property, but the interest of
Townsend or any person other than Heard.
With the applicable statutory context in mind, we turn to Heard’s argument that our
holding in Daniels—specifically involving the recovery of gambling losses—applies to the
recovery of a debt. In Daniels, the appellant was convicted of capital murder and aggravated
robbery. According to evidence presented at trial, the appellant was gambling with the victim
when he demanded, at knife-point, that the victim return his losses. After the victim refused
to return the gambling losses, the appellant attacked and repeatedly stabbed him. At trial,
defense counsel moved for a directed verdict on the aggravated robbery charge, contending
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that, because the appellant only wanted the victim to return the specific money he had just
lost gambling, there “was no intent to commit theft and aggravated robbery.” Daniels, 373
Ark. at 540, 285 S.W.3d 205. The trial court denied the motion; upon review, this court
reversed, stating that “it is clear that, under this court’s holding in Davidson v. State, [the
appellant] could not be convicted of aggravated robbery if he was trying only to recover
money that he had lost by gambling with [the victim].” Id. at 544, 285 S.W.3d at 211.
Reviewing principles of replevin relied on in Davidson and Ark. Code Ann. § 16-118-103 as
then codified, the court explained as follows:
The holding in Davidson was based on the fact that, under Arkansas law, a
person who loses money gambling may institute a replevin suit to recover that
money at any time within ninety days of the loss. “Replevin,” the Davidson
court noted, “is a possessory action, and it is essential to its maintenance that
the plaintiff should have the right to the present possession of the property
sought to be recovered.” Therefore, although a person seeking to forcefully
recover gambling losses may be guilty of assault or another crime, he or she
cannot be guilty of robbery. Although it may be argued that the Davidson rule
is not in the “public interest in a peaceful and orderly society,” it is nonetheless
still good law in Arkansas.
Id. (internal citations omitted). Consequently, we reversed the appellant’s conviction for
aggravated robbery.3
The General Assembly expressly overruled Daniels in Act 460 of 2009, stating in
Section 3 that
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It is the intent of this Act to overrule Daniels v. State, 373 Ark. 536 [ ] and its
interpretation of § 16-118-103(a)(1). That case and its interpretation of
replevin and the holding in Davidson v. State [ ], are contrary to the public
policy of this State.
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Heard’s reliance on Daniels is misplaced. Daniels specifically involved the recovery of
gambling losses. The decision was based on Ark. Code Ann. § 16-118-103 and the principles
of replevin discussed in Davidson. Here, however, there is no evidence or assertion that
Heard attempted to recover a gambling loss from Townsend. Further, this court has longheld that “[r]eplevin is not an action for the collection of debt, but upon the contrary is a
possessory action for the recovery of specific property.” Spear v. Arkansas Nat. Bank of Hot
Act 460 added a new subsection to § 16-118-103, the statute providing for the recovery of
gambling losses within ninety days, as follows:
The replevin suit provided for in subdivision (a)(1)(A) of this section does not
excuse a person from liability for, or create a defense under § 5-2-601 et seq.
to any crime of violence with which he or she may be charged as a result of
conduct to recover money or property so lost.
Ark. Code Ann. § 16-118-103(a)(1)(B) (Supp. 2009). Section 16-118-103 was also amended
to specify that a person may recover their gambling losses by “obtaining a judgment ordering
the return of the money or property” after a successful court action. See Ark. Code Ann. §
16-118-103(a)(1)(A)(i) (Supp. 2009).
Finally, Act 460 also amended Title 5 to insert Ark. Code Ann. § 5-2-622 (Supp.
2009), in the subdivision governing justification, to provide that “[i]t is no defense to a
prosecution for a crime of violence that a person seeking recovery or replevin of a gambling
debt or loss in circumstances in which civil recovery is permitted by § 16-118-103.”
The language of Act 460 is limited to the recovery of gambling losses. Additionally,
the act did not contain an emergency clause; therefore, it did not become effective until July
31, 2009, after the incident, trial, and conviction in this case. The act does not state that it
should be applied retroactively, and this court does not apply an act retroactively unless the
General Assembly expressly provides that it should be so applied. See, e.g., State v. Ross, 344
Ark. 364, 39 S.W.3d 789 (2001). Accordingly, Act 460 has no direct impact on this appeal,
and we must address Heard’s argument that Daniels applies or should be extended to situations
involving the recovery of a debt.
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Springs, 111 Ark. 29, 163 S.W. 508, 509 (1914) (emphasis added).
The crucial question in this case is whether the State provided sufficient evidence to
show that the money Heard demanded from Townsend was the property of another person—
an element of theft under § 5-36-103(a)(1). In this regard, the decision of the Wisconsin
Supreme Court in Edwards v. State, 181 N.W.2d 383 (Wis. 1970) involving “self-help” to
recover a debt is illustrative and comports with Arkansas case law distinguishing the
availability of an action in replevin to recover specific property from action to collect a debt.
In Edwards, as an issue of first impression, the Wisconsin Supreme Court examined the
“question of whether the intent to collect a debt at gun point negates the necessary intent to
steal and thus is a defense to a charge of robbery.” Edwards, 181 N.W.2d at 387. The Edwards
court agreed with the apparent majority of jurisdictions at that time, that “the reclamation of
specific removable property at gun point by the owner may not be armed robbery,” although
“such self-help may and generally does constitute a lesser crime than robbery.” Id. at 387
(emphasis added). However, the court found an exception involving money and debt, stating
that it could not “accept the view of the majority of cases which see no distinction between
the reclaiming of one’s own property by force and the taking of money from a debtor to
repay a debt which is presently owing.” Id. Instead, the court stated that “[t]he intent to steal
is present when one at gun point or by force secures specific money which does not belong
to him in order to apply it by self-help to a debt owed to him.” Id. (emphasis added).
The Edwards court explained that “[u]nless the accused can trace his ownership to
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specific coins and bills in the possession of the debtor, the debtor is the owner of the money in his
pocket and it is theft to take it from his possession.” Id. at 388 (emphasis added). The court
discussed the importance of the distinction “between specific personal property and money
in general” as follows:
A debtor can owe another $150 but the $150 in the debtor's pocket is not the
specific property of the creditor. One has the intention to steal when he takes
money from another's possession against the possessor's consent even though
he also intends to apply the stolen money to a debt. The efficacy of self-help
by force to enforce a bona fide claim for money does not negate the intent to
commit robbery. Can one break into a bank and take money so long as he does
not take more than the balance in his savings or checking account? Under the
majority rule the accused must make change to be sure he collects no more
than the amount he believes is due him on the debt. A debt is a relationship
and in respect to money seldom finds itself embedded in specific coins and
currency of the realm. Consequently, taking money from a debtor by force by
pay a debt is robbery. The creditor has no such right of appropriation and
allocation.
Id.
The Edwards court’s refusal to extend a “claim of right” defense to the collection of
a debt now appears to be the majority view. See United States v. Becerril-Lopez, 541 F.3d 881,
893 (9th Cir. 2008); People v. Tufunga, 987 P.2d 168, 177 (Cal. 1999). As stated by the New
Jersey Superior Court, the contrary position “is little more than a relic of days long past,” and
is “not only is lacking in sound reason and logic, but it is utterly incompatible with and has
no place in an ordered and orderly society such as ours, which eschews self-help through
violence.” State v. Ortiz, 305 A.2d 800, 801-02 (N.J. Super. Ct. Law Div. 1973).
Our case law on this issue has never extended as far as Heard suggests. Whether or not
the issue was one involving gambling losses, our case law has recognized the defense Heard
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asserts only in attempts to recover specific property. See, e.g., Daniels, supra (same, specific
money lost gambling); Davisdon, supra (same, specific money lost gambling);
Lane v.
Alexander, 168 Ark. 700, 271 S.W. 710 (1925) (U.S. treasury bonds); Brown v. State, 28 Ark.
126 (1873) (two bales of cotton). Additionally, irrespective of whether specific property is
at issue, the adoption of our 1975 Criminal Code placed the focus not on any claim of right
asserted by a defendant, but upon the interest of the victim or any other person than the
defendant, the “actor.”4 As stated by the court in Edwards, supra, “the debtor is the owner of
the money in his pocket.” 181 N.W. at 388. Townsend thus had a proprietary interest in
any money he had to repay Heard. As the State argued at trial, the same cannot be said for
the winner in an illegal gambling transaction; the winner has no interest in gambling winnings
sought to be reclaimed by the loser because the transaction is void. See Cohen & Co. v. Austin,
172 Ark. 723, 290 S.W. 579 (1927); see also United States v. Brown, 13 USCMA 485, 494
(C.M.A. 1963) (stating that intent to steal is lacking in the recovery of illegal gambling losses
because “the law recognizes no title or right to possession in the winner.”).
For these reasons, we refuse to extend the holding in Daniels and Davidson to the
collection of debts; the circuit court correctly held that these cases do not apply to an attempt
to recover a debt. In sum—despite Heard’s assertion that he had a “possessory interest” in
money that Townsend owed him—Townsend had a proprietary or possessory interest in any
Other jurisdictions have recognized that the adoption of new codes can supercede
claim of right defenses to aggravated robbery. See, e.g., State v. Hobbs, 64 P.3d 1218 (Utah Ct.
App. 2003).
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money that he had with which to repay Heard when Heard robbed him; thus, Townsend was
“a person . . . other than the actor” with “a possessory or proprietary interest” in the money.
Accordingly, under the plain language of § 5-36-101(8)(A), the money that Heard demanded
from Townsend was the “property of another person.” On this basis, the State presented
sufficient evidence that Heard committed theft, and, therefore, robbery and aggravated
robbery.5
Circuit court affirmed; court of appeals reversed.
HANNAH, C.J., dissents.
HANNAH, C.J., dissenting. I respectfully dissent. According to the majority, “the
Quoting from the dissent in a decision by the court of appeals involving the defense
of voluntary intoxication in Ellis v. State, 267 Ark. 690, 590 S.W.2d 309 (Ark. Ct. App.
1979), the dissent here states that “aggravated robbery is a specific intent crime”and, in turn,
the State must prove the “conscious object” to commit theft. We agree with the dissent that
robbery is a specific intent crime and that the State was required to provide sufficient evidence
of Heard’s intent to commit theft. Here, the State provided sufficient evidence that Heard
purposely threatened Townsend with the conscious object of obtaining money that
Townsend had in his pockets—the property of another under the statutory definition of § 536-101(8)(A). Further, the dissent states that the “analysis in Edwards is not applicable under
our statutes because Arkansas requires specific intent,” and that, “under the analysis in
Edwards, the intent to commit theft is implied if the defendant has the intent to deprive the
person permanently of property and the property sought is not the specific property belonging
to the defendant.” The Edwards court, however, framed the crucial question in that case as
“what is the nature of the specific intent necessary to establish the crime of robbery,” as required
by Wisconsin statutes and common law, noting that the “intent must be to steal.” 181
N.W.2d at 387 (emphasis added). Therefore, contrary to the dissent’s analysis of Edwards, that
case did involve specific intent, and thus, is persuasive and applicable.
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crucial question in this case is whether the State provided sufficient evidence to show that
the money Heard demanded from Townsend was the property of another person – an
element of theft under § 5-36-103(a)(1).” I disagree. The crucial issue in this case is
whether the State sustained its burden of proof that Heard acted with the purpose of
committing a theft, an element of robbery under § 5-12-102(a) (Repl. 2006). Heard set
out his argument for directed verdict on two possible bases. First, he asserted that there
“has to be a specific intent, i.e., to make – take money that is not yours.” Second, he
asserted that “if the money is yours, then it can’t be theft.” The majority focuses on the
second issue, and it is the issue that Heard addresses most fully on appeal.6 However, he
also argues on appeal that “the facts cannot support the elements of theft.” An element of
theft is specific intent to commit theft. Heard had to have the conscious object to commit
a theft. The issue on which the appeal turns, is whether the State proved the requisite
intent. It did not.
“[A]ggravated robbery contains an element of intent to commit theft.” Matthews
v. State, 2009 Ark. 321, at 4, ___ S.W.3d ___ , ___. “There is no doubt that aggravated
robbery is a specific intent crime.” Ellis v. State, 267 Ark. 690, 699, 590 S.W.2d 309, 315
(1979). To prove aggravated robbery, the State had to prove robbery. Ark. Code Ann. §
I do agree with the majority that neither Daniels v. State, 373 Ark. 536, 285 S.W.3d
205 (2008), nor Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940), is relevant because
those cases explain that recovery of gambling losses in Arkansas is not theft due to application
of replevin law and the effect on intent. Replevin is not at issue in the present case.
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5-12-103(a) (Repl. 2006). To prove robbery, the State had to prove that Heard, “with
the purpose of committing a. . .theft,” employed or threatened to employ physical force.
Ark. Code Ann. § 5-12-102(a) (Repl. 2006). Purposely is defined as acting with the
“conscious object to engage in the conduct,” in this case, theft. See Ark. Code Ann. § 52-202(1) (Repl. 2006). Therefore, the State had to prove that it was Heard’s conscious
object to commit a theft.
At trial, Townsend testified that Heard “demanded money from me which I owed
him.” The State argues on appeal that “appellant pointed a gun7 at the victim, Tommy
Townsend, and demanded that Townsend give him two dollars, which Townsend
admitted that he owed appellant. Thus, the State offered evidence to show that Heard’s
intent was to obtain repayment of money owed, and that he attempted to do so by threat
of force. However, no evidence was offered to show that it was Heard’s conscious object
to obtain the property of another. See Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2007).
The majority quotes Edwards v. State, 181 N.W.2d 383, 387 (Wis. 1970), where
the Wisconsin Supreme Court considered the “question of whether the intent to collect a
debt at gun point negates the necessary intent to steal and thus is a defense to a charge of
robbery.” The court in Edwards also stated as follows:
Unless the accused can trace his ownership to specific coins and bills in the
It is clear that the pistol Heard used was actually a toy; however, Townsend believed
it was a real pistol at the time.
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possession of the debtor, the debtor is the owner of the money in his pocket
and it is theft to take it from his possession with the intention to
permanently deprive him of its possession regardless of what other motive or
intention the accused has.
Edwards, 181 N.W.2d at 388. Thus, under the analysis in Edwards, the intent to commit
theft is implied if the defendant has the intent to deprive the person permanently of
property and the property sought is not specific property belonging to the defendant. The
majority concludes that, because the exact coins or bills lent were not being sought,
Townsend had a possessory interest in the money, and this made Heard’s demand a
demand for the property of another. However, the definition of when property is that of
another is not determinative on this appeal under Arkansas law. Under our statutes and
cases, intent cannot be negated or implied. Rather, under our statutory scheme, what is
determinative is Heard’s state of mind at the time of the incident. The State argued and
proved that his intent was to recover money he had loaned Townsend. The analysis in
Edwards is not applicable under our statutes because Arkansas requires specific intent. The
State failed to prove intent to commit theft.
If the majority is holding that specific intent may be negated, is no longer required,
or that intent may now be implied under the analysis set out in discussing Edwards, the
statutory definition of the intent to prove theft must be altered. That must be done by the
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General Assembly. This court is “without authority to declare an act to come within the
criminal laws of this state by implication.” Heikkila v. State, 352 Ark. 87, 90, 98 S.W.3d
805, 807 (2003) (citing Dowell v. State, 283 Ark. 161, 162, 671 S.W.2d 740, 741 (1984)).
We should follow the law. That is our overarching duty. Griffen v. Arkansas Judicial
Discipline, 355 Ark. 38, 57, 130 S.W.3d 524, 536 (2003).
Certainly, Heard’s conduct in pointing a pistol at Townsend’s face and demanding
repayment of a loan is reprehensible and inexcusable conduct. Under these facts Heard is
likely guilty of a crime. However, it is clear that the law on aggravated robbery has been
misapplied in the present case. The court of appeals reversed and dismissed this case
because the State failed to prove requisite intent. That decision should be affirmed.
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