APPEAL
FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43CR-17-544]
HONORABLE BARBARA ELMORE, JUDGE.
Robert
M. "Robby" Golden, for appellant.
Leslie
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
RAYMOND 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.[1]
At
trial, only two witnesses were called. Nathan Pruss, owner
and operator of Bruno's 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 Pruss's 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.
In
order to resolve the dispute, Hamrick wrote Bruno's
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
Hamrick's 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 another's property without resorting to
speculation or conjecture. The court denied the motion each
time.
In its
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 didn't receive one of his boats.
There's a check here where there was money given back to
Brutus [sic] Powersports and it didn't go through and it
was payment on boat--what was it?--"payment on
buyback." Payment on buyback of a boat. It didn't 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.
On
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
from Pruss.
A
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 court's 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. The evidence is viewed
in the light most favorable to the verdict, and only evidence
supporting the verdict is considered. Cora,
supra. On appeal, we do not weigh the evidence
presented at trial, as that is a matter for the fact-finder;
nor do we assess the credibility of the witnesses. Ewell
v. State, 375 Ark. 137, 138, 289 S.W.3d 101, 102 (2008).
The
theft-of-property statute provides that "a person
commits theft of property if he or she knowingly takes or
exercises unauthorized control over or makes an authorized
transfer of an interest in the property of another person
with the purpose of depriving the owner of the
property." See Ark. Code Ann. §
5-36-103(a)(1). Arkansas Code Annotated section
5-36-103(b)(2)(A), the specific statute with which Hamrick
was charged in the instant case, makes the crime a Class C
felony when "the value of the property is less than
twenty-five thousand dollars ($25, 000) but more than five
thousand dollars."
Based
on these statutes, and when viewing the evidence in the light
most favorable to the verdict, we hold that substantial
evidence supports Hamrick's theft-of-property conviction.
Only Pruss and Hamrick testified at trial, and 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. E.g., Reynolds v.
State, 2016 Ark. 214, at 3, 492 S.W.3d 491, 494. The
circuit court was not required to believe the self-serving
evidence from Hamrick--that he never possessed the
undelivered boat--since he was the person most interested in
the outcome of the proceeding. Rankin v. State, 338
Ark. 723, 1 S.W.3d 14 (1999). We will not reweigh the
evidence on appeal. Drennan v. State, 2018 Ark. 328,
at 6, 559 S.W.3d 262, 266. In fact, we will disregard
testimony that the fact-finder has found credible only if it
is so inherently improbable, physically impossible, or so
clearly unbelievable that reasonable minds could not differ
about it. Hillman v. State, 2019 Ark.App. 89, at
5-6, 569 S.W.3d 372, 375-76. Such is not the case here.
Under
this standard of appellate review, we hold that there is
substantial evidence to support Hamrick's ...