FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43CR-17-544],
HONORABLE BARBARA ELMORE, JUDGE
M. "Robby" Golden, for appellant.
Rutledge, Atty Gen., by: Brooke Jackson Gasaway, Asst Atty
Gen., for appellee.
R. ABRAMSON, Judge
Appellant Odis "Bo" Hamrick was found guilty by the
Lonoke County Circuit Court of one count of theft of property
in violation of Arkansas Code Annotated section
5-36-103(b)(2)(A) (Repl. 2013) at a bench trial on October
31, 2018. The circuit court sentenced Hamrick, as a habitual
offender, to 180 months imprisonment with 60 months
suspended imposition of sentence. Hamrick appeals his
conviction, arguing that there is a lack of sufficient
evidence to support it. We affirm but remand to correct an
error in the sentencing order.
trial, only two witnesses were called. Nathan Pruss, owner
and operator of Brunos Powersports in Cabot, Arkansas,
testified on behalf of the State, and Hamrick testified in
his own defense. Hamrick and Pruss entered into an agreement
in October 2014 for Hamrick to sell several boats to Pruss.
Hamrick was a boat broker of sorts. Hamrick acquired the
boats titles, and on October 23, 2014, Hamrick sent the
titles to Prusss wife, Sharon, via FedEx overnight delivery.
Pruss paid Hamrick for all the boats and received a bill of
sale documenting the transaction. Hamrick never delivered the
last boat to Pruss. Months went by, and
Pruss demanded repayment for the undelivered boat.
order to resolve the dispute, Hamrick wrote Brunos
Powersports a check for $ 8,951.46 on December 2, 2014, with
the "for" section of the check reading:
"Payment on boat buy back." The check was signed by
Hamrick and was written from his personal account. On
December 8, 2014, Arvest Bank notified Pruss that Hamricks
account had been closed. Pruss never received any payment
from Hamrick, and the boat was never delivered. Defense
counsel timely moved to dismiss after the State rested and
renewed the motion at the close of all the evidence, alleging
that there was not sufficient evidence to establish what the
subject matter of the theft was (i.e. the boat or
the money). Specifically, Hamrick argued that there was
insufficient evidence for a fact-finder to reach the
conclusion that he exercised unauthorized control of
anothers property without resorting to speculation or
conjecture. The court denied the motion each time.
ruling from the bench, the circuit court found the following:
All right. Mr. Pruss testified that he received the bill of
sale on the boats--on all the boats he received a bill of
sale. He paid for the boats. He stated he dealt with Mr. Odis
Hamrick totally. He didnt receive one of his boats. Theres
a check here where there was money given back to Brutus [sic]
Powersports and it didnt go through and it was payment on
boat--what was it?--"payment on buyback." Payment
on buyback of a boat. It didnt go through. He never did buy
back the boat. He never received a boat that he paid for, so
he was deprived of his property. I find him guilty.
appeal, Hamrick argues that the State failed to prove that
(1) he ever possessed the undelivered boat and that (2) Pruss
paid him money for the undelivered boat. The State contends
that it is irrelevant whether Hamrick ever possessed the
boat, as the evidence at trial was sufficient to demonstrate
that Hamrick exercised unauthorized control over $ 8,951.46
motion to dismiss at a bench trial, like a motion for
directed verdict at a jury trial, is considered a challenge
to the sufficiency of the evidence. Cora v. State,2009 Ark.App. 431, at 3, 319 S.W.3d 281, 283. We will affirm
a circuit courts denial of the motion if there is
substantial evidence, either direct or circumstantial, to
support the verdict. Id. Substantial evidence is
evidence forceful enough to compel a conclusion one way or
the other beyond suspicion and conjecture. Id.
Circumstantial evidence may constitute substantial evidence
to support a conviction if it excludes every other reasonable
hypothesis other than the guilt of the accused. Snow v.
State,2018 Ark.App. 612, at 5, 568 S.W.3d 290. The
evidence is viewed in the light most favorable to the
verdict, and only evidence supporting the verdict is
considered. Cora, supra. ...