FROM THE HEMPSTEAD COUNTY CIRCUIT COURT [NO. 29CR-13-78]
HONORABLE DUNCAN CULPEPPER, JUDGE
Anthony S. Biddle, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
F. VIRDEN, Judge
Hempstead County jury convicted appellant Michael Todd of
commercial burglary, second-degree forgery, breaking or
entering, and theft of property. He was sentenced as a
habitual offender to an aggregate term of seventy-five
years' imprisonment and ordered to pay $32, 500 in fines.
Todd raises five points on appeal to this court: (1) the
trial court erred in permitting the State to strike a
potential juror, (2) the trial court erred in denying his
motion to suppress, (3) the trial court erred in admitting
Rule 404(b) evidence, (4) the trial court erred in denying
his directed-verdict motions, and (5) the trial court erred
in denying his motion for a new trial. We affirm in part and
reverse and dismiss in part.
Tucker, an employee at Walmart in Hope, was working in the
electronics department on February 19, 2013, when he
encountered Todd and another individual, who "kinda
stayed in the back." Tucker testified that Todd
expressed interest in a computer and then presented a check
for payment. Tucker testified that Feroyri Sampson's name
was on the check. Tucker knew Sampson from working with
Sampson's girlfriend. Tucker said that, when he looked at
the name and then looked back at Todd, Todd abruptly said,
"I did something for my brother and he gave me this
check and told me to take care of it." Tucker accepted
Todd's explanation because he knew that Sampson had
brothers. Tucker testified that Todd selected the auto-check
payment option, meaning that the cash register printed the
pertinent information on a check and that the customer was
then required to sign electronically using a signature pad.
Once the transaction was complete, Tucker returned the check
to Todd and gave him a printed receipt. Tucker explained that
the paper check was no longer needed because the transaction
was processed electronically.
Duncan, customer-service supervisor at Walmart, testified
that Tucker relayed to her what he described as a
"weird" transaction. Duncan stated that, about
ninety minutes after that transaction, a man returned the
computer purchased by Todd, hoping to get cash back. Duncan,
who also knew Sampson, called Sampson's girlfriend to
alert her that someone had bought a computer with a check
drawn on Sampson's account.
McLannahan, asset-protection manager for Walmart, testified
that she reprinted a transaction receipt using an electronic
journal and acquired the electronic signature authorization
in connection with the February 19, 2013 transaction. These
documents were introduced into evidence. McLannahan said that
the transaction number on each document was the same. With
the date and a description of the item that was purchased,
she was able to find surveillance video of the transaction
for police. McLannahan further testified that, although
Walmart is a commercial business that is open to the public,
Walmart does not grant anyone a license to come into the
store and commit crimes. McLannahan said that, to her
knowledge, Todd had not been banned from Walmart.
Langston, Sampson's fiancée, testified that, after
receiving a phone call from Duncan, she went to her car and
saw that two DVD players were missing, along with
Sampson's checkbook. She called Sampson and confirmed
that he did not have his checkbook with him in his car.
Sampson testified that he did not know Todd and had not given
him permission to make a purchase on his behalf. Sampson
identified the last four digits of his checking-account
number on a reprinted transaction receipt from Walmart.
Featherston, currently an inmate at the Arkansas Department
of Correction, testified that he was with Todd on February
19, 2013, at Walmart in Hope. He said that they planned to
purchase a computer, return the item for cash, and split the
money. According to Featherston, Todd had the check used in
their scheme that day. He specifically denied entering
Langston's car and giving the checkbook to Todd.
Justin Crane with the Hempstead County Sheriff's Office
testified that on February 19, 2013, Langston reported that
two portable DVD players and a checkbook were taken from her
vehicle in Hope. Langston relayed to Crane the information
that she had received from Duncan. After viewing surveillance
video at Walmart, Crane developed Todd as a suspect. After
his arrest, Todd was interviewed and made incriminating
statements. The video of the entire interview was played for
interview, when asked about breaking or entering involving
three vehicles in close proximity, Todd denied taking DVD
players. With respect to the checkbook, Todd said, "Now,
that I might've had a hand in." He said,
"[T]here was a lot of shit we got into, and I was like,
'Man, we supposed to be splitting this and that, '
and, you know, he be done got shit I didn't know about. I
be checking cars, you know." Later, Todd said, "I
ain't broke into nothing. Them vehicles, I don't
never break into nothing. They be open." Todd said,
"I didn't go in but one vehicle in Perrytown."
Crane confronted Todd with the surveillance video from
Walmart in Hope. Todd said, "I did the check. The damn
laptop, I did." Todd said, "I just cashed the
check, brother. I'll ride with that." He further
said, "You caught me 'cause I was smoking crack and
got to slipping and going in Wal-Mart." Later, Todd
said, "But like I say, what you got me on is the
Wal-Mart thing. You got me on that."
Larry Marion with the Nashville Police Department testified
that on March 5, 2013, he received a report from Angela
Burgess that someone had stolen checks from her car in Hope
and had made unauthorized transactions at Walmart in
Nashville. After viewing surveillance video, Marion
identified Todd and Featherston as the people responsible for
passing the checks. Marion said that Featherston had
purchased a computer and that Todd had purchased two Wii
consoles and games. Marion testified that Todd subsequently
confessed his involvement.
jury convicted Todd of commercial burglary and second-degree
forgery, for which he was sentenced to thirty years'
imprisonment for each offense and ordered to pay two $10, 000
fines. He was also convicted of breaking or entering, for
which he was sentenced to fifteen years' imprisonment and
ordered to pay a $10, 000 fine. On the theft-of-property
conviction, which Todd does not challenge on appeal, he was
sentenced to one year in the county jail and ordered to pay a
$2, 500 fine. The prison sentences were ordered to run
consecutively for a total of seventy-five years.
Arguments and Discussion
Sufficiency of the Evidence
it is listed as his fourth point on appeal, we address
Todd's challenge to the sufficiency of the evidence first
due to double-jeopardy concerns. Fowler v. State,
2015 Ark.App. 579, 474 S.W.3d 120. Todd argues that the trial
court erred in denying his directed-verdict motions because
there was insufficient evidence to support his convictions.
Challenges to the sufficiency of the evidence are considered
in the light most favorable to the State, considering only
the evidence in favor of the guilty verdict. Piper v.
State, 2014 Ark.App. 472, 442 S.W.3d 17. The conviction
is affirmed if supported by substantial evidence; that is,
evidence forceful enough to compel a conclusion one way or
the other beyond suspicion or conjecture. Id. The
fact that evidence is circumstantial does not render it
insubstantial. Id. Circumstantial evidence may be
used to support a conviction if it is consistent with the
defendant's guilt and inconsistent with any other
reasonable conclusion; this determination is a question of
fact for the fact-finder. Id. The finder of fact is
also tasked with determining what portions of the
witnesses' testimony are credible and must resolve all
questions of conflicting testimony and inconsistent evidence.
Id. The jury is permitted to draw any reasonable
inference from circumstantial evidence to the same extent
that it can from direct evidence; it is only when
circumstantial evidence leaves the jury solely to speculation
and conjecture that it is insufficient as a matter of law.
person commits commercial burglary if he enters or remains
unlawfully in a commercial occupiable structure of another
person with the purpose of committing in that structure any
offense punishable by imprisonment. Ark. Code Ann. §
5-39-201(b)(1) (Repl. 2013). "Enter or remain
unlawfully" means to enter or remain in or upon the
premises when not licensed or privileged to do so. Ark. Code
Ann. § 5-39-101(2)(A). A person who enters or remains in
or upon premises "that are at the time open to the
public does so with license and privilege, regardless of
his or her purpose, unless he or she defies a lawful
order not to enter or remain on the premises." Ark. Code
Ann. § 5-39-101(2)(B)(I) (emphasis added).
contends that there was insufficient evidence to support his
conviction for commercial burglary because he did not
unlawfully enter or remain at Walmart and had not been banned
from the premises. We agree.
discussing the definition of "enter or remain
unlawfully" as used in current section 5-39-101(2)(B),
the Original ...