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Hubbard v. State

Court of Appeals of Arkansas, Division IV

February 15, 2017



          Morledge Law Firm, by: George "Birc" Morledge IV, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

          LARRY D. VAUGHT, Judge

         Lawrence Hubbard appeals the amended sentencing order entered by the Miller County Circuit Court on October 14, 2015, finding him guilty of residential burglary and theft of property and sentencing him to thirty years' and twenty years' imprisonment, respectively, to be served consecutively. On appeal, he challenges the sufficiency of the evidence supporting the convictions, and he argues that the circuit court abused its discretion in admitting evidence pursuant to Arkansas Rule of Evidence 404(b). We affirm.

         Just before 8:00 a.m. on March 21, 2014, Debra Johnson left her home on Jack Cullen Drive, in Texarkana, Arkansas. Her husband had already left for work. About twenty minutes later, Debra received a call from her husband advising that their home alarm was going off. Debra returned home to find that the police had responded to the alarm. She also found that the glass door in the back of her home had been broken and glass was all over the ground, her jewelry was lying on the ground, her home had been ransacked, and her three-foot-tall jewelry chest had been stolen along with more than $25, 000 in jewelry and two guns.

         Later that same morning, homes located at 6 Ridge Row Circle, 7311 Schilling Circle, and 6602 North Park Road in Texarkana, Texas, were burglarized. The owner of the home at 6602 North Park Road, was at home around 10:45 a.m. when she saw and heard men enter. As they ransacked her home, she hid in the bathroom and called the police. When the police arrived, three suspects fled. Police apprehended Hubbard. Two other suspects escaped. Not long thereafter, the police received a call about a burglary in progress at 7004 North Park Road. Willie Powell and Marcus Levine were arrested after fleeing that location.

         Three days after Hubbard's arrest, the police interviewed him at his request. He stated that he was from Houston, Texas, and had traveled to Texarkana in his vehicle with Powell and Levine. He said that they met with Stephanie Parker, whom he had dated in 2012 and who was currently living in Texarkana. Hubbard stated that they devised a plan whereby Parker would drive the three men around Texarkana, and they would burglarize homes. Hubbard confessed to three of the March 21, 2014 Texas burglaries-6 Ridge Row Circle, 7311 Schilling Circle, and 6602 North Park Road.[1] He said that they mostly took jewelry from the homes and that they carried the items out of the homes in pillowcases taken from the homes. Hubbard did not confess to the Arkansas burglary on Jack Cullen Drive.

          Stephanie Parker was later arrested for her involvement in the burglaries. On July 10, 2015, she pled guilty to the charges stemming from the burglary on Jack Cullen Drive.[2] She testified at Hubbard's trial that he wanted her to drive his vehicle around Texarkana and show him the "rich neighborhoods" so that he, Powell, and Levine could burglarize homes in those neighborhoods. She stated that she was to receive $500 for her part in the burglaries.

         Parker said that on the morning of March 21, 2014, she drove the men to a home on Jack Cullen Drive. Parker knocked on the door of the home, and no one answered. She said that the three men jumped out of the car and went behind the home. Hubbard told her to drive around the block and wait for his call. When Hubbard called, she returned to the home, and the men placed pillowcases filled with the stolen items in the trunk and placed a three-foot-tall jewelry box in the backseat. She said that the men cleaned out the jewelry box, put the jewelry in the pillow cases, and threw the box out of the car. Parker drove the men to the next house. Parker testified that Hubbard, Powell, and Levine broke into four or five houses that morning. She said that she was driving around the 6602 North Park Road home (while Hubbard, Powell, and Levine were inside) and was on the phone with Hubbard when she saw the police. She warned Hubbard the police were nearby, and she drove away.

         The State filed a third amended criminal information against Hubbard on October 5, 2015, alleging that on March 21, 2014, he had committed the offenses of residential burglary, theft of property, and two counts of possession of a firearm by certain persons.[3] After the trial, the jury found Hubbard guilty of residential burglary and theft of property.

         Hubbard's first point on appeal is a challenge to the sufficiency of the evidence supporting the residential-burglary and theft-of-property convictions. Our standard of review for a sufficiency challenge is well settled. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Navarro v. State, 371 Ark. 179, 186, 264 S.W.3d 530, 535 (2007) (citing Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006)). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Navarro, 371 Ark. at 186, 264 S.W.3d at 535. We affirm a conviction if substantial evidence exists to support it. Id., 264 S.W.3d at 535. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id., 264 S.W.3d at 535.

         Furthermore, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. at 186-87, 264 S.W.3d at 535-36. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. at 187, 264 S.W.3d at 536. The credibility of witnesses is an issue for the jury and not the court. Id., 264 S.W.3d at 536. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id., 264 S.W.3d at 536.

          A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a) (Repl. 2013). In this case, the offense punishable by imprisonment was theft of property. A person commits theft of property if he or she knowingly takes or exercises unauthorized control over or makes an unauthorized transfer of ...

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