Anderson v. State, CA
| Decision Date | 29 April 1998 |
| Docket Number | No. CA,CA |
| Citation | 967 S.W.2d 569,62 Ark.App. 1 |
| Parties | Donald ANDERSON, Appellant, v. STATE of Arkansas, Appellee. CR 97-1017. |
| Court | Arkansas Court of Appeals |
David Lewis Clark, Amity, for Appellant.
Winston Bryant, Attorney General, O. Milton Fine, II, Assistant Attorney General, Little Rock, for Appellee.
Appellant Donald Anderson appeals his conviction for defrauding a secured creditor for which he was fined $5,000 and ordered to pay court costs and restitution in the amount of $2,800. He asserts two points on appeal. We find merit in appellant's argument and reverse his conviction.
Appellant was convicted of violating Ark.Code Ann. § 5-37-203 (Repl.1997), which provides:
(a) A person commits the offense of defrauding secured creditors if he destroys, removes, cancels, encumbers, transfers, or otherwise disposes of property subject to a security interest with the purpose to hinder enforcement of that interest.
(b) Defrauding secured creditors is a Class D felony.
The facts upon which appellant was charged are as follows. On November 15, 1993, appellant and his wife purchased a 1986 Chevrolet truck from J & P Auto Sales in Flippin, Arkansas. The sales price was $5,850, and the retail installment agreement provided for monthly installment payments of $219.35. Their agreement further provided that appellant was granting a security interest to the seller in the truck being purchased. The buyers listed an address at the time in Flippin, Arkansas. J & P financed the transaction by simultaneously assigning its rights to Peoples Bank & Trust of Mountain Home, Arkansas, and guaranteeing payment of the debt.
Appellant and his wife missed monthly installments or made partial payments on the truck off and on after its purchase. Only the first payment due in December 1994 was timely and paid in full. The payment history that followed is outlined: January--$0; February--$0; March--$200; April--$200; May--$100; June--$380; July--$100; and August--$100. The records indicated that one money order for partial payment came from appellant on July 19, 1994, after he had moved, and on it was handwritten in the address portion "Don Anderson, Amity, Ark." In September 1994, the bank called on J & P, as guarantor, to repay the outstanding loan in full and reassigned all of its right and title under the retail installment contract back to J & P. The arrangement with the bank was that J & P could be required to repurchase, or pay off, the loan if any payment became past due for more than ninety days.
Appellant explained that he and his wife separated around June 1994. His wife moved back to Florida, and he moved from Flippin to Amity, Arkansas, where his sons lived. Before they separated, he thought she was paying the truck payments. When they divided their belongings, his wife did not want to take the truck so he took it. Short of money, he only paid partial payments in July and August 1994. Then, after learning and expecting that the truck was to be repossessed, he simply stopped making any payments.
The bank had begun sending J & P notices of late payment beginning in January 1994. It was important for J & P to be informed of this information since the bank had recourse against the automobile dealership. Before and after September 14, 1994, when it had to pay off the loan, J & P attempted to find appellant and determine the whereabouts of the truck. Appellant's sister, who was listed on his credit application as living in Flippin, had apparently moved when J & P tried to locate her for a more current address.
The owner of J & P filed an affidavit seeking a criminal prosecution regarding the truck in December 1994. The formal information filed by the prosecutor alleged that on or before September 14, 1994, appellant and his wife purchased the truck, left the area, and failed to pay for the vehicle or to contact J & P regarding their whereabouts. J & P continued thereafter to try to locate appellant and the truck through letters, telephone calls, and requests for a more current address from the post office. It also attempted to obtain information from appellant's probation officer in Arkadelphia, but the probation officer would not disclose any information. Apparently, J & P did not check with the Office of Motor Vehicles in the Arkansas Department of Finance and Administration prior to seeking criminal prosecution. If it had, it would have learned that, in November 1994, appellant had renewed the truck's annual registration and listed his Amity address.
The truck was finally located in Amity, Arkansas, and it was repossessed from that location in September 1995. The truck's condition was found to be substantially deteriorated from the time it had been sold. The motor would not "turn over," one side was dented, the seat was torn, the ceiling lining was torn and hanging down, the radio/tape player was broken, and the engine oil had the consistency of "pudding." The truck was not operable and had apparently been sitting in front of appellant's Amity residence for months. J & P sold the truck in this condition for about half the price for which it had been sold to appellant.
Appellant admitted that his son had told him that some man had been looking for him, and his son had told the man where appellant was working at the time. Appellant testified that he knew that he was behind and in fact had stopped making payments --- He knew the bank had an existing lien. He maintained that he never intended to defraud a secured creditor; he just fell behind and expected the secured party to recover the truck. He moved only because he and his wife had separated and he needed somewhere to live.
Appellant argues that the trial court erred when it denied his motion to dismiss on the grounds (1) that the complaining party was not a secured creditor and therefore no cause of action could be sustained, and (2) that there was no evidence of intent. The first motion to dismiss was made prior to the case going to trial, and the trial judge properly denied that motion. A motion to dismiss cannot be granted prior to the State having an opportunity to present its case. Watson v. State, 313 Ark. 304, 854 S.W.2d 332 (1993); Hardcastle v. State, 25 Ark.App. 157, 755 S.W.2d 228 (1988).
After the State presented its case, appellant moved for directed verdict, which is a challenge to the sufficiency of the evidence. Tucker v. State, 50 Ark.App. 203, 901 S.W.2d 865 (1995). When reviewing the sufficiency of the evidence, we view all the evidence and the reasonable inferences capable of being drawn therefrom in the...
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Stuart v. State
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