DUSTIN L. MERCHANT APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-15-79]
HONORABLE CHARLES A. YEARGAN, JUDGE
Randle Smolarz, for appellant.
Rutledge, Att'y Gen., by: Kent G. Holt, Ass't
Att'y Gen., for appellee.
M. GLOVER, JUDGE.
Merchant was convicted by a Howard County jury of theft of
utility property, a Class B felony. He was sentenced as a
habitual offender to fifteen years in prison and fined $7500.
He was also ordered to pay restitution of $16, 100 to
Arkansas Southern Railroad. On appeal, Merchant makes four
arguments: (1) his conviction should be overturned because
the property did not meet the statutory definition of
"utility property"; (2) the jury charge did not
require the State to prove all elements required by the
statute; (3) the lesser-included offense of misdemeanor theft
should have been presented to the jury; and (4) the trial
court erred in denying his motion for directed verdict
because the State failed to introduce substantial evidence
for each of the elements of theft of utility property. We
of the Evidence
it is his last point on appeal, due to double-jeopardy
concerns, we must address Merchant's
sufficiency-of-the-evidence challenge first. Todd v.
State, 2016 Ark.App. 280, 494 S.W.3d 444. Merchant was
charged with theft of utility property valued at $500 or more
pursuant to Arkansas Code Annotated section 5-36-103(a)(1)
and (b)(1)(E)(i)- (ii)(a)-(b) (Repl. 2013). This
statute provides that a person commits theft of property if
he or she knowingly takes or exercises unauthorized control
over or makes an unauthorized transfer of an interest in the
property of another person with the purpose of depriving the
owner of the property. Ark. Code Ann. § 5-36-103(a)(1).
Such a theft is a Class B felony if the property is utility
property and the value of the property is $500 or more. Ark.
Code Ann. § 5-36-103(b)(1)(E)(i). "Utility" is
defined as "any person or entity providing to the public
gas, electricity, water, sewer, telephone, telegraph, radio,
radio common carrier, railway, railroad, cable and broadcast
television, video, or Internet services." Ark. Code Ann.
§ 536-103(b)(1)(E)(ii)(a). "Utility
property" is defined as
any component that is reasonably necessary to provide utility
services, including without limitation any wire, pole,
facility, machinery, tool, equipment, cable, insulator,
switch, signal, duct, fiber optic cable, conduit, plant,
work, system, substation, transmission or distribution
structure, line, street lighting fixture, generating plant,
equipment, pipe, main, transformer, underground line, gas
compressor, meter, or any other building or structure or part
of a building or structure that a utility uses in the
production or use of its services.
Code Ann. § 5-36-103(b)(1)(E)(ii)(b).
directed-verdict motion is a challenge to the sufficiency of
the evidence. Holland v. State, 2017 Ark.App. 49,
510 S.W.3d 311. Our test for determining the sufficiency of
the evidence is whether the verdict is supported by
substantial evidence. Wells v. State, 2017 Ark.App.
174, 518 S.W.3d 106. Evidence is substantial if it is of
sufficient force and character to compel reasonable minds to
reach a conclusion and pass beyond suspicion and conjecture.
Id. On appeal, the evidence is viewed in the light
most favorable to the State, and only the evidence supporting
the verdict is considered. Wells, supra.
sufficiency argument is not preserved for appellate review.
At the close of the State's case, Merchant's counsel
made the following directed-verdict motion: "Your Honor,
at this time I would make a motion for a directed verdict
based on the State's inability to prove their case beyond
a reasonable doubt as to each and every element of the
offense." This motion was denied. Merchant called no
witnesses and renewed his motion for directed verdict, which
was again denied.
33.1(b) of the Arkansas Rules of Criminal Procedure requires
that a directed-verdict motion based on insufficient evidence
must specify in what manner the evidence is deficient; a
motion merely stating that the evidence is insufficient does
not preserve issues concerning a specific deficiency such as
insufficient proof on the elements of the offense for
appellate review. Rule 33.1 is to be strictly construed.
Pinell v. State, 364 Ark. 353, 219 S.W.3d 168
(2005). The reasoning behind Rule 33.1 "is that when
specific grounds are stated and the absent proof is
pinpointed, the circuit court can either grant the motion,
or, if justice requires, allow the State to reopen its case
and supply the missing proof." Id. at 357, 219
S.W.3d at 171. Another reason the motion must be specific is
because the appellate courts cannot decide an issue for the
first time on appeal. Id. Because Merchant's
directed-verdict motion failed to specify in what manner the
State's proof was insufficient, this argument is not
preserved for appellate review.
of Utility Property
was charged with stealing copper wiring from an
out-of-service locomotive. Merchant argues, without citation
to authority, that neither the locomotive nor the copper
wiring was "utility property" and that it was not
proved that Arkansas Southern Railroad, the entity that owned
the locomotive from which the copper wiring had been stolen,
was a utility. These arguments were never made to the circuit
court, and Merchant is now precluded from raising them for
the first time on appeal. Torres v. State, 2017
Ark.App. 425. A party is bound by the nature and scope of the