Beene v. State

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-18-1169], HONORABLE HERBERT WRIGHT, JUDGE

         William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

         Leslie Rutledge, Att’y Gen., by: Rebecca Bailey Kane, Ass’t Att’y Gen., for appellee.

          OPINION

         ROBERT J. GLADWIN, Judge

          Appellant Paul Beene appeals his conviction in the Pulaski County Circuit Court on a charge of felony theft by receiving. His sole point on appeal is a challenge to the sufficiency of the evidence. We affirm.

          I. Facts

         On April 2, 2018, the State filed an information alleging that on or about March 20, appellant committed two felony offenses: (1) theft by receiving of a vehicle with a value of $5,000 or less, but more than $1,000, a Class D felony as defined in Ark. Code Ann. § 5-36-106(a), (e)(3)(A) (Repl. 2013); and (2) fleeing by means of a vehicle under circumstances manifesting extreme indifference to the value of human life, a Class D felony as defined in Ark. Code Ann. § 5-54-125(a), (d)(2) (Repl. 2016). The State also alleged that appellant is a habitual offender with four or more prior felony convictions.

          On September 11, appellant stood trial in the Pulaski County Circuit Court. The State’s proof regarding the stolen vehicle was provided primarily by the vehicle’s owner, Corsheatia Lomax. Ms. Lomax, who previously had dated appellant, testified that her vehicle was stolen on March 20, 2018. Ms. Lomax described her vehicle and its value as follows:

The type of vehicle it was, was a two thousand six burgundy TrailBlazer. I purchased that vehicle in the early part of 2017. How much I paid for it was thirty-nine hundred. I am not still making payments on that vehicle. How many miles that vehicle had on it was like 140-something thousand miles on it. In March of this last year, if I were going to have sold it, what I would have sold it for was about three thousand.

          On cross-examination, Ms. Lomax confirmed that she would try to sell her vehicle for $3,000 but that she had not sold the vehicle and still owned it.

          Appellant’s counsel preserved the issue for appeal by moving for dismissal of the theft-by-receiving charge at the close of presentation of all the evidence:

At this time, I’d like to make a motion to dismiss. As to Count 1 specifically, he is charged with theft by receiving of a 2006 Chevy TrailBlazer with, the witness testified, had approximately 100 thousand, 150 thousand miles on it. She did not give any proof of any value that the vehicle was worth at least a thousand dollars. She did say she would like to sell it for three thousand dollars. She did not give any proof that she’d be able to [sell] it for two thousand dollars. She did not give any testimony to what kind of shape the vehicle was in, whether or not the tires were new, whether or not the frame was bent, whether or not there was [sic] scratches, dents, anything that would affect the value. There was [sic] no pictures presented of said vehicle so the Court could see what kind of condition it was in. I am requesting that be reduced to a misdemeanor theft by receiving. State has not showed value up to a thousand dollars.

          The circuit court denied counsel’s motion to dismiss, found appellant guilty of both charges, and found that appellant is a habitual offender with four or more prior felony convictions. Appellant was sentenced to an aggregate sentence of three years’ imprisonment in the Arkansas Department of Correction pursuant to a sentencing order entered on October 9, 2018. He filed his timely notice of appeal on November 1, 2018.

          II. Standard of Review ...