FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-15-765]
HONORABLE MARK LINDSAY, JUDGE
D. Warner, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., and Bryan Foster, Law Student Admitted to
Practice Pursuant to Rule XV of the Rules Governing Admission
to the Bar of the Supreme Court under the Supervision of
Darnisa Evans Johnson, Deputy Att'y Gen., for appellee.
KENNETH S. HIXSON, Judge.
Mark A. Mosley appeals after he was convicted by the
Washington County Circuit Court of theft of property as a
habitual offender. He was sentenced to serve a total of 120
months' imprisonment. On appeal, Mosley's sole
argument is that there was insufficient evidence to convict
him of theft of property. We affirm.
was arrested and charged with commercial burglary, a class C
felony, under Arkansas Code Annotated section 5-39-201(b)(1)
(Repl. 2013); theft of property, a class C felony under
Arkansas Code Annotated section 5-36-103(b)(2); and as a
habitual offender under Arkansas Code Annotated section
5-4-501(b). A jury trial was held on December 14-15, 2015,
and the following facts were introduced at trial.
Tractor is located in Fayetteville, Arkansas, and sells farm
implements and lawn equipment. At approximately 3:00 a.m. on
Friday, March 27, 2015, the silent-security alarm went off at
Williams Tractor. The alarm-monitoring company contacted the
designated employee of Williams Tractor, and he drove to the
business. As this employee drove up to Williams Tractor, he
saw the front gate open and a zero-turn lawn mower sitting
near the gate. He also noticed a U-Haul truck driving in the
vicinity. The Fayetteville Police Department arrived on the
scene. During their immediate investigation, police officers
noticed distinct shoe prints on and about the zero-turn lawn
mower parked at the gate. Apparently, the lawn mower had run
out of gas. Police officers saw a man walking down a nearby
street. Police stopped the man, and during their
conversation, the man told them that he had been fighting
with his girlfriend. After further discussions and
observations of this man, they determined his shoe prints
matched the distinct shoe prints on and about the mower. The
man, later identified as Ledrick Hinton, was arrested for
loitering and commercial theft of property.
police found a second zero-turn lawn mower outside the fence
and also out of gas. A Polaris Razor ATV (Polaris Razor),
worth approximately $14, 000, was discovered missing. The
ground was wet around Williams Tractor, and police were able
to follow tire tracks out of the gate and around the building
toward the back of the property. At the end of the tire
tracks, police discovered a makeshift ramp made of railroad
ties, mulch, and brush. Police subsequently contacted the
neighboring business, Total Document Solutions (TDS). TDS had
a security camera trained on the rear of its property, which
coincidentally overlooked the rear of the Williams Tractor
property. This security-camera footage contained images of
the theft of the Polaris Razor. The TDS images with time
stamps between 2:28 a.m. and 3:03 a.m. depicted two or three
unidentifiable men, a white Chevy Tahoe, and a U-Haul truck.
Ledrick Hinton was being held at the Washington County
detention center, Detective Scott O'Dell questioned him.
During questioning, Hinton allowed Detective O'Dell to
look at his cell phone. Detective O'Dell testified at
trial that there were two phone numbers listed in
Hinton's phone that were very active during the time just
before and after the theft. The contacts associated with
those numbers according to Hinton's phone were
"Mark" and "Mark in the Dark." Detective
O'Dell testified that after further research, he
determined that Verizon was the carrier for the phone number
associated with "Mark in the Dark, " and AT&T
was the carrier for the phone number associated with
"Mark." The AT&T phone could be tracked through
cell-tower usage to be in the vicinity of Williams Tractor at
the time of the theft, around 3:00 a.m., and the AT&T
phone was later used around 8:30-9:00 that same morning near
Palestine, Arkansas. Also, Detective O'Dell was able to
retrieve information from the AT&T phone that this phone
was used to contact a person by the name of Larry Wilson that
same morning. Once the AT&T phone was identified with
Mosley, Detective O'Dell researched law enforcement
records and discovered that Mosley was the registered owner
of a white 2002 Chevy Tahoe-the same vehicle used in the
Williams Tractor theft.
Detective O'Dell contacted Larry Wilson in Wynne,
Arkansas, and asked him about the phone calls between him and
Mosley on the morning of March 27. Wilson subsequently
testified that he had a prior relationship with Mosley. He
did not know Mosley's last name; he knew him only as Mark
the "Little Rock Man." Wilson testified that Mosley
contacted him either by text or phone the morning of March 27
and asked him if he would be interested in buying a Polaris
ATV. They met in the parking lot of a service station off of
I-40 in Palestine, Arkansas. Mosley was driving a white SUV,
and there was a U-Haul truck present. In the back of the
U-Haul truck was what appeared to be a new Polaris Razor ATV.
Wilson told Mosley that he was not interested in the
"Razor" but that if Mosley had a "Ranger,
" he would be interested. Wilson testified that Mosley
offered to sell him the "Razor" for $8500, but he
addition to the testimony of Detective O'Dell and Larry
Wilson, there was extensive testimony from representatives of
AT&T, law enforcement officials, state agencies, and
others concerning the identity and locations of Mosley's
AT&T phone and the machinations necessary to follow his
phone around the state. There was testimony from Jessica
Schermacher, an employee of the State of Arkansas. One of her
job responsibilities is to maintain the database of persons
on parole. Persons on parole must provide the state with
accurate contact information. Mosley was on parole for an
unrelated crime on March 27, 2015, the date of the Williams
Tractor theft. Schermacher testified that Mosley had
previously provided the agency with two phone numbers for his
contact information. Those telephone numbers were the same
numbers as the AT&T and Verizon phone numbers identified
by Detective O'Dell and identified as "Mark"
and "Mark in the Dark" on Hinton's phone.
Furthermore, the AT&T number was the same number used by
Mosley to contact Wilson to arrange for the meeting in
Palestine after the theft.
Wann, an AT&T Mobility employee in Fayetteville,
Arkansas, testified that he had looked at the phone records
for the AT&T phone. Wann testified regarding the
cell-tower records for the AT&T phone and confirmed much
of the information already provided by Detective O'Dell.
On cross-examination, Wann admitted that Otis Brown, not
Mosley, was listed as the subscriber for the AT&T phone.
Bohannan, a title clerk and finance employee at Williams
Tractor, testified that the Razor was worth $14, 015.47,
including the additional accessories that were added to it.
the State rested, Mosley moved for a directed verdict.
Regarding the theft-of-property charge, Mosley argued that
the State failed to prove that he had knowingly taken or
exercised unauthorized control over, or made an unauthorized
transfer of interest in, the property of another person while
depriving the owner thereof. He more specifically argued that
the only evidence introduced by the State was that he had
control over a Razor in Palestine, ...