APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NOS.
60CR-10-4191 AND 60CR-17-2699] HONORABLE HERBERT WRIGHT,
JUDGE
William R. Simpson, Jr., Public Defender, by: Clint Miller,
Deputy Public Defender, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE
The
appellant, LaQueena Cox, appeals her conviction by a Pulaski
County Circuit Court of theft of property, a Class A
misdemeanor, and the revocation of her probation for
committing the new offense.[1] We affirm both the conviction and
the revocation.
On
August 3, 2017, while on probation, Cox was charged with
theft of property, a Class C felony, pursuant to Arkansas
Code Annotated section 5-36-103(b)(3)(A) (Repl. 2013). The
State alleged that she had exercised unauthorized control
over currency with a value of less than $5, 000 but more than
$1, 000. The circuit court held a bench trial on February 26,
2018, and the State put on evidence that Cox worked as the
manager of the Parkway Crossing apartment complex in North
Little Rock, where her duties included collecting, recording,
and depositing rent payments. Valecia Walker, co-owner of the
complex, testified that Cox was a tenant who had fallen
behind on her rent and that Walker had offered assistance by
providing a job as the assistant manager of the complex. Cox
later became manager. Stephanie Raney, another employee,
testified that she noticed people coming in to pay rent who
were not listed in the office software as tenants and who
were paying for apartments listed in the complex's
records as unoccupied.
Donald
Marshall, who co-owns the complex with Walker, testified that
the complex used QuickBooks Pro and AppFolio software to
track and manage rental payments. Marshall testified that in
April 2017, Raney told him that people were coming to the
complex's office to pay for apartments listed as
"vacant" in the management software. According to
Marshall, employees were required to record rental payments
in both software programs. When a payment was recorded, the
AppFolio software program would generate a receipt for the
tenant. Marshall testified that he knew Cox was stealing
money from the business when he learned that a tenant had a
handwritten receipt from Cox for a cash payment and that
there was no record of the payment in the management
software. Marshall testified that employees were not allowed
to accept cash payments or issue handwritten receipts.
Doris
Hernandez testified that Cox accepted Hernandez's
application for an apartment and issued her a receipt for a
$460 payment that she made on February 17, 2017. Hernandez
testified that $300 of that payment was in cash, and the
remainder was paid by money order. Hernandez identified Cox
as the person who had accepted that payment. The payment was
not recorded in the business's management software. There
was no record that it had been deposited with the bank.
The
court sustained Cox's objection to the admission of
several other handwritten receipts for cash payments because
those documents could not be authenticated without the
testimony of the persons named on the receipts. Other than
Hernandez, none of the other residents to whom Cox had issued
handwritten receipts could be located for trial. The State
rested, and Cox moved to dismiss, arguing that the State had
proved only that she had failed to record Hernandez's
payment in the management software, not that she had stolen
the money. The State argued that its evidence demonstrated
that Cox was not allowed to either take cash payments or
issue handwritten receipts but had done both, had not
recorded or deposited the cash, and could not accounted for
the cash. The court denied the motion. The defense rested and
renewed its motion, which the court again denied. The court
found Cox guilty of misdemeanor theft.[2] Cox stipulated
that the conviction amounted to a violation of her probation,
and the court revoked her probation. This timely appeal
followed.
On
appeal, Cox challenges the sufficiency of the evidence
supporting both her conviction for theft of property and the
subsequent revocation of her probation based on the
commission of that new offense. See Walker v. State,
77 Ark.App. 122, 124, 72 S.W.3d 517, 519 (2002) (a motion to
dismiss for lack of evidence in a bench trial is a challenge
to the sufficiency of the State's proof). Our test for
determining the sufficiency of the evidence is whether the
verdict is supported by substantial evidence, direct or
circumstantial. Jones v. State, 357 Ark.
545, 182 S.W.3d 485 (2004). 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. Wells v. State, 2017 Ark.App. 174, at 2,
518 S.W.3d 106, 108-09 (citing Haynes v. State, 346
Ark. 388, 58 S.W.3d 336 (2001)). On appeal, we view the
evidence in the light most favorable to the State,
considering only that evidence that supports the verdict.
Id. at 2, 518 S.W.3d at 108-09 (citing Williams
v. State, 346 Ark. 304, 57 S.W.3d 706 (2001)).
Cox
raises one argument on appeal: she claims that the State
presented insufficient evidence to support the conviction and
the revocation because it failed to prove that she had the
opportunity to steal the missing money and that no other
employee had such an opportunity. Cox failed to raise this
argument below and it is therefore not preserved for our
review. In her motion to dismiss, Cox argued that (1) the
State had not shown that the money was "processed,
deposited, not received"; (2) the State failed to prove
the identities of the people who allegedly lived in the
apartments listed as "unoccupied" in the management
software; and (3) the State had not proven that any money
taken from tenants was not deposited in the complex's
bank account. She never argued that she had no opportunity to
steal the money or that other employees had such an
opportunity.
In
order to preserve a challenge to the sufficiency of the
evidence for appeal from a bench trial, the issue must be
articulated clearly and specifically to the circuit court in
a motion to dismiss so that the circuit court will have the
opportunity to either grant the motion or, if justice
requires, allow the State to reopen its case and supply the
missing proof. Lamb v. State, 372 Ark. 277, 279, 275
S.W.3d 144, 146 (2008). A party may not change or expand his
or her arguments on appeal; an appellant is limited to the
scope and nature of the arguments made below. Id. We
therefore affirm Cox's conviction for theft of property
based on her failure to preserve her only argument on appeal.
Cox
also challenges the sufficiency of the evidence as the
revocation of her probation. She rightfully concedes that any
chance of succeeding in her appeal of the revocation hinges
on obtaining a reversal of the theft conviction that formed
the circuit court's basis for revoking her probation.
...