Brown v. State

• Decision Date: 18 May 2011
• Docket Number: No. CACR10-1063,CACR10-1063
• Citation: Brown v. State, No. CACR10-1063 (Ark. App. May 18, 2011)
• Parties: NATHANIEL R. BROWN APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2011 Ark. App. 366

NATHANIEL R. BROWNAPPELLANT

v.STATE OF ARKANSASAPPELLEE

No. CACR10-1063

ARKANSAS COURT OF APPEALS DIVISION I

Opinion Delivered May 18, 2011

APPEAL FROM THE CARROLL

COUNTY CIRCUIT COURT

[NO. CR-2009-159-ED]

HONORABLE GERALD K. CROW,

JUDGE

AFFIRMED IN PART; AFFIRMED AS

MODIFIED IN PART; AND

REVERSED AND DISMISSED IN

PART

JOHN MAUZY PITTMAN, Judge

After a jury trial, Nathaniel R. Brown was convicted of aggravated robbery, two counts of aggravated assault, felony theft of property, first-degree escape, and failure to appear.On appeal, he argues that the trial court erred in denying his motions for directed verdict on felony theft of property, failure to appear, and one of the aggravated-assault offenses.Some of these arguments are meritorious.

A motion for a directed verdict is a challenge to the sufficiency of the evidence.Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511(2004).In reviewing a challenge to the sufficiency of the evidence, we will not second-guess credibility determinations made by the fact-finder.Stone v. State, 348 Ark. 661, 74 S.W.3d 591(2002).Instead, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict.Id.Weaffirm the conviction if there is substantial evidence to support it.Hughes v. State, 74 Ark. App. 126, 46 S.W.3d 538(2001).Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty, without resorting to speculation or conjecture.Crutchfield v. State, 306 Ark. 97, 812 S.W.2d 459(1991).

Viewed in light of this standard, the record shows that Jerry Williams, a Carroll County warrants officer, and Suzanne Villines, appellant's probation officer, went to appellant's home to arrest him on an outstanding warrant for failure to appear.The officers spoke first to Gelitia Matney, who told them that appellant was not there.Appellant was found hiding in the laundry room and was arrested, handcuffed behind his back, and placed in the back seat of Williams's patrol vehicle.While the officers were talking to Ms. Matney regarding her effort to hinder appellant's apprehension, appellant somehow managed to move his arms in front of him and move himself from the back seat of the vehicle to the driver's seat.Still handcuffed, he started the vehicle and began to flee.After a prolonged pursuit involving several police officers and the deployment of spike strips, appellant lost control and the vehicle overturned.

Appellant first argues that the evidence of the value of the stolen patrol vehicle was insufficient to support a conviction for felony theft, which, in the absence of circumstances not applicable here, must involve property with a value greater than $500.SeeArk. Code Ann. § 5-36-103(b)(Supp. 2009).The record contains testimony regarding the make andmodel of the police SUV that appellant stole, video showing the vehicle in operation, and evidence that it was going almost ninety miles per hour immediately before the wreck.There was no other evidence bearing on value.The Arkansas Supreme Court was faced with similar circumstances in Rogers v. State, 248 Ark. 696, 453 S.W.2d 393(1970).That case presented the question of whether a jury could properly infer that a newly painted, four-year-old Dodge Charger with brand new tires and a new vinyl top could be valued at more than $35 in the absence of any other evidence of value.The supreme court held that the law will not take judicial notice of the value of personal property, so proof of value is essential where the punishment depends upon the value in issue.The court recognized that it might well be argued that this strict rule should not apply where it could easily be said that it was common knowledge that a 1966 Dodge Charger was worth at least $35, but declined to depart from the rule requiring proof because of the difficulty such a precedent would cause to trial and appellate courts in determining the common knowledge of values.

Given this precedent and the dearth of value evidence in this case, we think that appellant's point is well taken, and we modify the judgment to reduce the grade of the theft offense to a Class A misdemeanor.SeeGines v. State, 2009 Ark. App. 628.Inasmuch as appellant was only fined for commission of the theft, we also modify the fine to reduce it to $2500, the maximum allowable for a Class A misdemeanor under Ark. Code Ann. § 5-4-201(b)(1)(Supp. 2009).SeeDixon v. State, 260 Ark. 857, 545 S.W.2d 606(1977).

Appellant next argues, and the State concedes, that the evidence was insufficient to support his failure-to-appear conviction because there was no proof that appellant receivednotice of his court date and...