FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-16-3564] HONORABLE BARRY ALAN SIMS, JUDGE
Wesley Hall and Sarah M. Pourhosseini, for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
August 9, 2017, a Pulaski County jury convicted appellant
Steven Miller of simultaneous possession of drugs and a
firearm, possession of methamphetamine with intent to
deliver, possession of drug paraphernalia, theft by
receiving, and possession of firearm by certain persons. He
was sentenced to 30 years in the Arkansas Department of
Correction. On appeal, he argues that there was insufficient
evidence to prove the theft-by-receiving charge. We affirm
but remand to correct an error in the sentencing
relevant to the appeal follow. On August 15, 2016, Miller was
pulled over in his pickup truck for a traffic stop.
Miller's wife was also in the vehicle. While searching
Miller, his wife, and the cab of the pickup truck, police
found drugs, drug paraphernalia, and over $2400 in cash. Upon
being placed in the patrol car, Miller told officers that
everything in the truck was his, and he had just ingested two
grams of methamphetamine. In the bed of the truck was a
third-row cloth seat belonging to another vehicle. During the
search of that seat, a deputy noticed a tear in the
middle-section armrest. When he looked in the torn part, he
saw a black Kel-Tac .380 caliber handgun with six rounds in
the magazine. Miller's wife testified that she had seen
Miller place the gun there a few days before they were
Ferguson testified that the handgun belonged to him in May
2016, and that it was stolen from his secretary's car.
Before the gun was stolen, Ferguson had spray painted it to
cover some rust, but the paint had been sanded off since he
had last seen it. Although the paint had been sanded off, the
handgun's serial number remained visible. Ferguson did
not know Miller and did not give him permission to have his
trial, in a motion for directed verdict, Miller argued that
there was no evidence that he knew or had good reason to know
that the handgun was stolen. For his sole point on appeal,
Miller argues that the trial court erred in denying this
appeal, this court treats a motion for directed verdict as a
challenge to the sufficiency of the evidence. Velasco v.
State, 2016 Ark.App. 454, 504 S.W.3d 650. Evidence is
sufficient to support a conviction when it is substantial.
Russell v. State, 2017 Ark.App. 667, 537 S.W.3d 279.
Evidence is substantial when it is of sufficient force and
character to compel reasonable minds to reach a conclusion
beyond suspicion and conjecture. Id. Intent rarely
can be proved by direct evidence and thus must usually be
inferred from the circumstances. White v. State, 98
Ark.App. 366, 255 S.W.3d 881 (2007). Circumstantial evidence
can be substantial if it excludes every other reasonable
hypothesis consistent with innocence. Russell, 2017
Ark.App. 667, at 3, 537 S.W.3d at 281. Whether the evidence
excludes every other reasonable hypothesis consistent with
innocence is a determination to be made by the trier of fact.
Id. Weighing of the evidence and credibility
determinations likewise are made by the trier of fact.
Id. On appeal, the evidence is viewed in the light
most favorable to the verdict, with only that evidence
supporting the verdict considered. Id.
person commits theft by receiving when he receives, retains,
or disposes of stolen property of another person, knowing it
was stolen or having good reason to believe it was stolen.
Ark. Code Ann. § 5-36-106(a) (Repl. 2013). Pursuant to
Arkansas Code Annotated section 5-36-106(c), the unexplained
possession or control by a person of recently stolen property
or the acquisition by a person of property for a
consideration known to be far below its reasonable value
shall give rise to a presumption that the person knows or
believes that the property was stolen. The presumption is not
necessarily overcome even if a defendant provides a plausible
explanation for possession of the recently stolen property;
rather, whether the explanation is to be believed is a
determination made by the trier of fact. Benton v.
State, 2012 Ark.App. 71, 388 S.W.3d 488.
Arkansas Criminal Code does not define the term
"recently stolen," leaving its explication to the
facts and circumstances of each case. Thomas v.
State, 2011 Ark.App. 637, at 7-8, 386 S.W.3d 536, 541.
In Thomas, we held that a little more than seven or
eight months is too long, without more, to raise the
statutory presumption applicable to recently stolen property.
Id. In Williams v. State, however, we held
that evidence was sufficient to allow the jury to
find-without resorting to speculation or conjecture-that
Williams knew or had reason to believe that the gun was
stolen because he was in unexplained possession of a gun that
had been discovered missing four months earlier. 93 Ark.App.
353, 356, 219 S.W.3d 676, 679 (2005).
we have testimony that Miller was found with a gun that had
been stolen three months before his arrest. Miller argues
that Williams is distinguishable because, in
Williams, the appellant was attempting to conceal
the gun without explanation, and here, the concealment can be
explained by Miller's being a felon and wanting to hide
his possession of a firearm. He also attempts to explain away
the filing off the gun's spray paint to someone just not
liking the paint job. He asserts that Williams does
not establish a bright-line rule about what is or is not
disagree and hold that the presumption of section
5-36-106(c)(1) applies and that evidence in the case before
us is more than sufficient to establish his guilt of theft by
receiving of the handgun. The evidence demonstrated that
Miller possessed the handgun within two to three months of
being stolen, he concealed it in an armrest in the back of
the pickup truck, and attempts had been made to alter the