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Wolfe v. State

Court of Appeals of Arkansas, Division III

May 30, 2018

JEFFREY ALLEN WOLFE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE YELL COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO. 75SCR-16-59] HONORABLE JERRY D. RAMEY, JUDGE

          Eric Moore, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

          KENNETH S. HIXSON, Judge

         Appellant Jeffrey Allen Wolfe appeals after he was convicted by a Yell County jury of two counts of theft of property as a habitual offender. He was sentenced to serve 60 months' imprisonment for count one, theft of property, a Class C felony, and 84 months' imprisonment for count two, theft of property, a Class B felony, to be served consecutively for a total of 144 months' imprisonment. On appeal, appellant's sole argument is that there was insufficient evidence to convict him of the two counts of theft of property. We affirm.

         Appellant was arrested and charged with theft of property, a Class C felony under Arkansas Code Annotated section 5-36-103(b)(2) (Repl. 2013); with theft of property, a Class B felony under Arkansas Code Annotated section 5-36-103(b)(1); and as a habitual offender under Arkansas Code Annotated section 5-4-501. A jury trial was held on January 19, 2017, and the following facts were introduced at trial.

         Much of the facts are undisputed in this case. A service van containing plumbing tools from Mountain Valley Plumbing was reported stolen in Plainview, Arkansas, on July 10, 2016. Detective Gary Morrison testified that he was assigned to investigate the case. Detective Kenneth Poore discovered the keys to the van at the home of Candice Howard, who lived in Dardanelle, Arkansas. Howard testified that appellant had stayed with her for a few days and that appellant had left the keys and other belongings on her counter. Appellant was not at the residence when Detective Poore discovered the keys at the home. Detective Morrison and Lieutenant Scott Moore testified that the van was recovered eleven days after it was reported stolen on the Dardanelle side of the Arkansas River. Lieutenant Moore testified that the van had been left unlocked and that the back of the van was buried in a sandbar. Deidre Thurman testified that, while the van still contained tools in it, some of the tools were missing. Thurman's family owns Mountain Valley Plumbing. Thurman further testified that the van cost approximately $45, 000 in 2014 and still maintained a value of approximately $39, 000 when it was stolen. The cost of the tools was approximately $30, 000-$40, 000. Thurman testified that a "few thousand" dollars' worth of tools were missing from the van and that one of the recovered tools cost $900 to repair.

         After the State rested its case, appellant moved for a directed verdict. He argued that the State had failed to make a prima facia case and specifically challenged the "intent" element. After the trial court denied his motion, appellant testified on his own behalf. Appellant admitted that he took the van and was guilty of unauthorized use of a motor vehicle. However, he argued that he was not guilty of theft because he did not intend to "not return the van." He explained that he is diabetic and took the van because he was having an "episode." Appellant testified that he had traveled with Howard and two other females to Lake Nimrod. Because he wanted to stay longer, he told Howard and the others to leave without him. However, he had no food or water, and he admitted that he had taken methamphetamine. Appellant further testified that shortly after midnight he began to feel faint, disoriented, and that he would "fall out" at any minute. However, he could not call anyone for help because the screen on his phone had shattered. Although he had passed by houses at 3:00 or 4:00 a.m., he did not want to knock on people's doors because he "looked like a total mess" and did not want to "surprise anybody." Therefore, he took the van that he found. He testified that it had been left unlocked and had the keys inside it. Appellant claimed that he immediately went to McDonald's and then parked the van down a "rougher road" in a "somewhat . . . public place" by the river because he was embarrassed. He testified that he locked the van and did not know why he kept the keys in his pocket. However, he claimed that he did not intend to keep the van or the tools inside.

         Appellant admitted that he had six to eight convictions but did not remember having thirteen convictions as the State alleged. Appellant additionally indicated that he wrote an "apology letter" to the victim after his arrest. The letter was introduced into evidence. In the letter, he requested the victim to contact the prosecutor and recommend that he be allowed to participate in a drug-court program rather than being imprisoned. Appellant reiterated his claims that he took the van as an emergency and stated that he did not take anything from the van.

         After appellant rested, he renewed his motion for a directed verdict. He specifically challenged the intent element and additionally argued that the value of the van and the tools had not been adequately established. The trial court denied his motion. The jury found him guilty of both charges. Appellant stipulated that he had over four prior felony convictions, and he was sentenced as a habitual offender to serve a total of 144 months' imprisonment. Because appellant's notice of appeal was untimely filed, appellant filed a motion and amended motion for belated appeal with our supreme court. Our supreme court granted appellant's amended motion for belated appeal and subsequently transferred the case to our court; this appeal followed.

         I. Sufficiency of the Evidence

         A motion for a directed verdict is a challenge to the sufficiency of the evidence. Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517. When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. The sufficiency of the evidence is tested to determine whether the verdict is supported by substantial evidence, direct or circumstantial. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007); Boyd v. State, 2016 Ark.App. 407, 500 S.W.3d 772. Substantial evidence is evidence that is of sufficient force and character that will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Hinton, supra. Finally, the credibility of witnesses is an issue for the jury and not the court. Id. 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.

         A person commits theft of property if he or she knowingly (1) 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; or (2) obtains 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). Theft of property is a Class B felony if the value of the property is twenty-five thousand dollars ($25, 000) or more and a Class C felony if the value of the property is less than twenty-five thousand dollars ($25, 000) but more than five thousand dollars ($5, 000). Ark. Code Ann. § 5-36-103(b)(1)- (2). A person can "deprive" another person of his or her property in three ways:

(A) Withhold property or to cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use, or benefit is ...

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