Cora v. State Of Ark.

Decision Date27 May 2009
Docket NumberNo. CA CR 08-633.,CA CR 08-633.
Citation2009 Ark. App. 431,319 S.W.3d 281
PartiesMichael Spiro CORA, Appellant,v.STATE of Arkansas, Appellee.
CourtArkansas Court of Appeals

Dyer and Jones, by: F. Parker Jones III, Benton, for appellant.

Dustin McDaniel, Att'y Gen., by: Deborah Nolan Gore, Ass't Att'y Gen., for appellee.

M. MICHAEL KINARD, Judge.

Appellant, Michael Spiro Cora, appeals from his conviction on a charge of theft of property lost, mislaid, or mistakenly delivered. On appeal, appellant argues that the trial court erred in denying his motions for directed verdict. We affirm.

During the relevant time period, appellant was the sole owner of a business known as Michael Cora Marine & ATV, Inc. Audie Prewitt testified that he purchased a boat from Cora Marine in August 2005. Prewitt initially arranged to have approximately $40,000 of the purchase price financed through Riverland Credit Union. When the loan proceeds were not processed when promised, Prewitt contacted Riverland. He was informed that Hurricane Katrina had done extensive damage to Riverland's main New Orleans branch. Prewitt was advised by Riverland to procure alternate financing. Prewitt arranged financing through Simmons First National Bank and tendered payment to Cora Marine. Prewitt testified that, after he arranged financing with Simmons, he advised appellant not to accept payment from Riverland.

After payment was made to Cora Marine by Prewitt, Riverland mistakenly sent a check to Mike Cora Marine & ATV, Inc., which was deposited into the business's account and used to pay expenses, according to the testimony of appellant. Appellant testified that the check was deposited by his assistant, and that he was personally not aware of the double payment until he was notified by Prewitt. After appellant was notified of the double payment, he issued a check to Prewitt for the amount mistakenly paid by Riverland. Before Prewitt could deposit the check, appellant stopped payment on the check. Appellant testified that he did not know whether he had sufficient funds to cover the check in the account and that an attorney he had consulted regarding business matters had advised him to pay Riverland directly, instead of Prewitt. In March of 2006, both appellant and Mike Cora Marine & ATV, Inc. filed for bankruptcy protection. Appellant testified that, after Prewitt and his spouse later filed a civil action against him, he offered to repay the overpayment in monthly installments, which the Prewitts refused. No additional evidence of any efforts by appellant to repay the overpayment was presented. Following the trial, the trial court, sitting without a jury, found appellant guilty of theft of property. Appellant was sentenced to six years' probation, with three years supervised and three years unsupervised. Appellant was also ordered to pay restitution to the Prewitts' account at Riverland.

Appellant's first point on appeal is that the trial court erred in denying his motions for directed verdict. Because this was a bench trial, appellant's motions for directed verdict were in reality motions to dismiss. Stewart v. State, 362 Ark. 400, 208 S.W.3d 768 (2005). 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. Tomboli v. State, 100 Ark.App. 355, 268 S.W.3d 918 (2007). We will affirm a trial court's denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Id.

Appellant was charged with and found guilty of theft of property in violation of Arkansas Code Annotated section 5-36-105 (Repl.2005). Pursuant to section 5-36-105, a person commits theft of property lost, mislaid, or delivered by mistake if the person (1) comes into control of property of another person; (2) retains or disposes of the property when the person knows the property to have been lost, mislaid, or delivered under a mistake as to the identity of the recipient, or as to the nature or amount of the property; and (3) with the purpose of depriving any person having an interest in the property, the person fails to take reasonable measures to restore the property to a person entitled to it. On appeal, as he did in his motions for directed verdict during the trial, appellant argues that the State failed to produce substantial evidence that he came into control of property of another person and that the State failed to produce substantial evidence that appellant failed to take reasonable measures to restore the property to a person entitled to it with the purpose to deprive one having an interest in the property.

Regarding the issue of control of the funds, appellant argues that the funds were mistakenly given to the corporation, not him, and that he never personally exercised any control over the funds, shielding him from criminal liability. There is currently no case law defining what is meant by the term “control” in section 5-36-105, nor is the term defined in the statute. However, it is a well-established rule of statutory construction that the intent of the legislature must be gleaned from the plain and ordinary meaning of the words used in the statute. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998). Control is defined as (1) to exercise power or influence over; (2) to regulate or govern.” Black's Law Dictionary 330 (7th ed.1999).

If one gives the term “control” its common meaning in the statute, it is clear that appellant came into control of the funds. The funds in question were mistakenly paid to Mike Cora Marine & ATV, Inc. Appellant claims that all of the transactions-sale of the boat, negotiation of the check, and control of the money-were performed by the corporation and that appellant was acting in a representative capacity of the company (as an agent) and, therefore, is not personally liable. We disagree.

Appellant was the sole owner of Mike Cora Marine & ATV, Inc., making the business his corporate alter-ego. The maxim qui facit per alium, facit per se is as applicable here, in a criminal case, as it is in an equity case. He who acts through another, whether the alium is corporate or natural, acts himself. This is particularly true, as here, where the corporation was the alter ego of appellant. Appellant had the authority to repay the funds...

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15 cases
  • Whalen v. State, CR–14–980
    • United States
    • Arkansas Court of Appeals
    • December 9, 2015
    ...2010 Ark. App. 857, 379 S.W.3d 774 ).4 Id.5 Stewart v. State, 2010 Ark. App. 9, at 2, 373 S.W.3d 387, 389 (citing Cora v. State, 2009 Ark. App. 431, 319 S.W.3d 281 ).6 Id. (citing Cora, supra ).7 Id. (citing LaRue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991) ).8 Foster v. State, 2015 Ar......
  • Marbley v. State
    • United States
    • Arkansas Court of Appeals
    • December 11, 2019
    ...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,......
  • Thomas v. State
    • United States
    • Arkansas Court of Appeals
    • October 26, 2011
    ...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 trial court's denial of the motion if there is substantial evidence, either direct or circumstanti......
  • Turner v. State
    • United States
    • Arkansas Court of Appeals
    • February 15, 2012
    ...evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Cora v. State, 2009 Ark. App. 431, 319 S.W.3d 281. Assessment of witness credibility is the responsibility of the finder of fact. Doubleday v. State, 84 Ark.App. 194, 138 S......
  • Request a trial to view additional results

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