Brown v. State

• Decision Date: 11 September 1991
• Docket Number: No. CA,CA
• Parties: Donaldson BROWN, Appellant, v. STATE of Arkansas, Appellee. CR 90-331.
• Court: Arkansas Court of Appeals

Page 918

814 S.W.2d 918

35 Ark.App. 156

Donaldson BROWN, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 90-331.

Court of Appeals of Arkansas,

Division II.

Sept. 11, 1991.

Judy Rudd Dodson and Thomas B. Devine, III, Public Defenders, Little Rock, for appellant.

Elizabeth Vines, Asst. Atty. Gen., for appellee.

DANIELSON, Judge.

Appellant Donaldson Brown was convicted of burglary, felon in possession of a firearm, and theft of property. He was sentenced to ten years on each count, with the three ten-year terms to be served concurrently. On appeal, appellant argues there was insufficient evidence to support the burglary conviction. We affirm.

On November 13, 1989, three police officers of the North Little Rock Police Department observed appellant pushing a shopping cart through an alley between the 1900 block of Magnolia and Olive Streets in North Little Rock. Because appellant's description fit that of a suspect they were seeking at that time, they approached him in the unmarked police car. As the police car turned toward him, appellant deserted the shopping cart and fled. Two of the officers, one in uniform, pursued appellant on foot and the third pursued him in the car.

Appellant was apprehended nearby and the shopping cart was recovered. The cart contained a crossbow and a rifle, which were visible to an officer when appellant was initially sighted in the alley, and other items, including a cable box from Storer Cable, a hunting knife, arrows, .22 shells, a Nintendo game, a cassette player, items of jewelry, and items of clothing.

The police traced the registration number on the cable box to 318 East 21st Street, which was about two blocks from where the shopping cart was located. The police proceeded to that address and discovered the door locks had been pried open. The residents were contacted and verified, upon arrival, that the house had been broken into and that several items of personal property were missing. The residents later identified as theirs the items found in the shopping cart appellant was pushing.

Appellant testified that he did not burglarize the residence, but instead found the items in a dumpster and carried them away in a shopping cart he had taken from a nearby grocery store lot. Appellant admitted to fleeing from the police but claimed he only ran from them because he was on parole and was supposed to be in Oklahoma rather than in Arkansas.

A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(a) (1987). Appellant contends the evidence was insufficient to prove beyond a reasonable doubt that he had entered the residence from which the property was taken.

When the sufficiency of the evidence is challenged on appeal, we review the evidence in the light most favorable to the appellee, and affirm if there is any substantial evidence to support the verdict. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991). Substantial evidence is evidence of sufficient force and character that it will compel reasonable minds to reach a conclusion without resort to speculation and conjecture. Id.

Circumstantial evidence may constitute substantial evidence and be sufficient to sustain a conviction. Summers v. State, 300 Ark. 525, 780 S.W.2d 540 (1989). When circumstantial evidence alone is relied upon, it must indicate the accused's guilt and exclude every other reasonable hypothesis. Hutcherson v. State, 34 Ark.App. 113, 806 S.W.2d 29 (1991). Whether the evidence excludes every other reasonable hypothesis is for the factfinder to decide. Summers, 300 Ark. 525, 780 S.W.2d 540.

Appellant was in possession of the stolen property when he was first observed by the officers. Unless there is a satisfactory accounting for the property being in one's possession, possession of recently stolen property is prima facie evidence of guilt of burglary, even if there is no direct evidence of breaking or entering by the appellant. Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991). Appellant contends he gave a satisfactory accounting when he testified that he found the items in a dumpster and that he never entered the residence. However, decisions regarding the credibility of a witness are for the trier of fact. The judge was not required to believe the explanation given by appellant, who was the person most interested in the outcome of the trial. Muhammed v. State, 27 Ark.App. 188, 769 S.W.2d 33, cert. denied, 493 U.S. 847, 110 S.Ct. 142, 107 L.Ed.2d 101 (1989).

Appellant also abandoned the shopping cart and fled when he saw the police car. In Cristee v. State, 25 Ark.App. 303, 757 S.W.2d 565 (1988), the court stated that the action of an accused in fleeing from the scene of a crime is a circumstance that may be considered with other evidence in determining probable guilt. Appellan...