Heard v. State
| Decision Date | 05 November 2009 |
| Docket Number | No. CR 09–647.,CR 09–647. |
| Citation | 2009 Ark. 546,354 S.W.3d 49 |
| Parties | Demetrius HEARD, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
OPINION TEXT STARTS HERE
Hancock, Lane & Barrett, by: Jonathan T. Lane, Little Rock, for appellant.
Dustin McDaniel, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for appellee.
Demetrius Heard appeals his conviction for aggravated robbery following a bench trial. He asserts that the trial court erred by denying his motion for a directed verdict. We affirm the circuit court and reverse the court of appeals.
On October 18, 2007, Lonoke police responded to a 911 call from Tommy Townsend, who alleged that Heard pointed a pistol at him and demanded that Townsend repay a debt of two dollars.1 Heard was arrested and charged with aggravated robbery. At trial, Townsend testified that Heard threatened him with a gun and demanded two dollars that he claimed Townsend owed him, and that he did, in fact, owe a debt to Heard. According to Heard's testimony, he and Townsend “got into it over two dollars” several times in the past.
After the State rested its case during the bench trial, Heard moved for a directed verdict on the charge of aggravated robbery. Specifically, Heard argued that aggravated robbery requires evidence of a threat of violence and theft, which involves an intent to take the property of another; therefore, because Townsend owed him two dollars, there was no theft. Heard renewed his motion for a directed verdict at the close of the defense's case, citing Daniels v. State, 373 Ark. 536, 545, 285 S.W.3d 205, 211 (2008), in which this court held that “the law in Arkansas is that recovering gambling losses is not theft.” The trial court again denied the motion, concluding that the holding in Daniels and a case cited therein- Davidson v. State, 200 Ark. 495, 139 S.W.2d 409 (1940)—were specifically limited to gambling losses. Finding Heard guilty of aggravated robbery, the trial court sentenced him to a term of ten years' imprisonment as a habitual offender.
Upon review, the court of appeals reversed Heard's conviction in Heard v. State, 2009 Ark.App. 425, 319 S.W.3d 292. The court of appeals stated that, “[t]he crucial question in this case is whether the prosecution presented substantial evidence to show that the two dollars was ‘the property of another person’ ”—an element of theft under Ark.Code Ann. § 5–36–103(a)(1) (Repl.2006). Id. at 2, 319 S.W.3d at 293. Relying upon Davidson, supra, the court of appeals held that “there [was] no substantial evidence that [Heard] threatened violence in order to obtain ‘the property of another’ ” based on Townsend's concession that Heard “had a right to the money without asserting any right of his own.” Id. at 3, 319 S.W.3d at 294.
The State filed a petition for review of the court of appeals's decision, asserting that the decision was legally erroneous because it relied on and extended precedent that was limited to theft in the context of the recovery of gambling losses. Further, the State contended that the General Assembly expressly overruled this court's decision in Daniels with Act 460 of 2009. This court granted the State's petition for review; accordingly, we review the case as though it was originally filed in this court. Hinojosa v. State, 2009 Ark. 301, 319 S.W.3d 258.
For his single point on appeal, Heard argues that the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence to support his conviction for aggravated robbery. A challenge to the sufficiency of the evidence asserts that the verdict was not supported by substantial evidence. Flowers v. State, 373 Ark. 119, 121, 282 S.W.3d 790, 792 (2008). Substantial evidence is evidence of sufficient force and character that without resorting to speculation and conjecture compels with reasonable certainty a conclusion one way or the other. Id. We review the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.
A person commits aggravated robbery if he commits robbery and “[r]epresents by word or conduct” that he is armed with a deadly weapon. Ark.Code Ann. § 5–12–103(a)(2) (Repl.2006). Under Ark.Code Ann. § 5–12–102(a), a person commits robbery if he “employs or threatens to immediately employ physical force upon another person” with the purpose of committing felony or misdemeanor theft.2 Theft is committed when a person knowingly “[o]btains the property of another person, by deception or by threat, with the purpose of depriving the owner of the property.” Ark.Code Ann. § 5–36–103(a)(2) (Repl.2006). Heard specifically argues as follows:
Given that [Townsend] owed the money to [Heard], [Heard] must have a possessory interest in the money. That [Heard] has a possessory interest in the money reclaimed, even at gunpoint, the facts cannot support the elements of theft, and thus there was no theft. If there was no theft, there could be no robbery, which would preclude a conviction of armed robbery. In support of this argument, Heard relies entirely on Daniels. Prior to addressing Daniels, as an initial matter we note that Heard's focus on his own alleged “possessory interest” in the money is contrary to the statutory definition of “property of another.”
Arkansas Code Annotated § 5–36–101(7), a provision of the subchapter governing theft, defines “property” as “severed real property or tangible or intangible personal property, including money or any paper or document that represents or embodies anything of value.” The same statute, adopted as part of the 1975 Criminal Code, defines “property of another person” as “any property in which any person or the government other than the actor has a possessory or proprietary interest.” Ark.Code Ann. § 5–36–101(8)(A). Heard's focus on his own asserted “possessory interest” is, therefore, misplaced. The applicable statute disregards Heard's claimed interest and focuses on the interest of any other person than Heard.
For example, in Phillips v. State, 297 Ark. 368, 761 S.W.2d 933 (1988), the appellant challenged his conviction for theft under § 5–36–103, arguing that there was insufficient evidence that he took the “property of another person” of a value more than $200.00—required to meet the statute's definition of a Class C felony at the time—when only $200 taken from his victim's purse belonged to her, and she had an additional $100 belonging to her church due to her position as treasurer. This court rejected the appellant's argument, stating that
“Property of another person means any property in which any person ... has a possessory or proprietary interest.” Here, the victim has a proprietary interest in the $200.00 which was her own money, and a possessory interest in the $100.00 which she was holding as treasurer for her church. Under this definition the evidence was sufficient to convict the appellant.
Phillips, 297 Ark. at 369, 761 S.W.2d at 933. The pertinent inquiry under our statutory definition, therefore, is not Heard's asserted interest in the property, but the interest of Townsend or any person other than Heard.
With the applicable statutory context in mind, we turn to Heard's argument that our holding in Daniels—specifically involving the recovery of gambling losses—applies to the recovery of a debt. In Daniels, the appellant was convicted of capital murder and aggravated robbery. According to evidence presented at trial, the appellant was gambling with the victim when he demanded, at knife-point, that the victim return his losses. After the victim refused to return the gambling losses, the appellant attacked and repeatedly stabbed him. At trial, defense counsel moved for a directed verdict on the aggravated robbery charge, contending that, because the appellant only wanted the victim to return the specific money he had just lost gambling, there “was no intent to commit theft and aggravated robbery.” Daniels, 373 Ark. at 540, 285 S.W.3d at 208. The trial court denied the motion; upon review, this court reversed, stating that “it is clear that, under this court's holding in Davidson v. State, [the appellant] could not be convicted of aggravated robbery if he was trying only to recover money that he had lost by gambling with [the victim].” Id. at 544, 285 S.W.3d at 211. Reviewing principles of replevin relied on in Davidson and Ark.Code Ann. § 16–118–103 as then codified, the court explained as follows:
The holding in Davidson was based on the fact that, under Arkansas law, a person who loses money gambling may institute a replevin suit to recover that money at any time within ninety days of the loss. “Replevin,” the Davidson court noted, “is a possessory action, and it is essential to its maintenance that the plaintiff should have the right to the present possession of the property sought to be recovered.” Therefore, although a person seeking to forcefully recover gambling losses may be guilty of assault or another crime, he or she cannot be guilty of robbery. Although it may be argued that the Davidson rule is not in the “public interest in a peaceful and orderly society,” it is nonetheless still good law in Arkansas.
Id. (internal citations omitted). Consequently, we reversed the appellant's conviction for aggravated robbery.3
Heard's reliance on Daniels is misplaced. Daniels specifically involved the recovery of gambling losses. The decision was based on Ark.Code Ann. § 16–118–103 and the principles of replevin discussed in Davidson. Here, however, there is no evidence or assertion that Heard attempted to recover a gambling loss from Townsend. Further, this court has long-held that “[r]eplevin is not an action for the collection of debt, but upon the contrary is a possessory action for the recovery of specific personal property.” Spear v. Ark. Nat'l Bank of Hot Springs, 111 Ark. 29, 163 S.W. 508, 509 (1914) (emphasis added).
The crucial question in this case is whether the State...
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