Higgins v. State

• Court: Arkansas Supreme Court
• Writing for the Court: BROWN
• Citation: Higgins v. State, 326 Ark. 1030, 936 S.W.2d 740 (Ark. 1996)
• Decision Date: 23 December 1996
• Docket Number: No. CR,CR
• Parties: Kacy L. HIGGINS, Appellant, v. STATE of Arkansas, Appellee. 96-62.

Page 740

936 S.W.2d 740

326 Ark. 1030

Kacy L. HIGGINS, Appellant, v. STATE of Arkansas, Appellee.

No. CR 96-62.

Supreme Court of Arkansas.

Dec. 23, 1996.

John Wesley Hall, Little Rock, for appellant.

Kent G. Holt, Asst. Atty. General, Little Rock, for appellee.

BROWN, Justice.

The appellant, Kacy L. Higgins, was convicted of the crime of theft of property, a Class B felony, in that he exercised unauthorized control over timber owned by other persons and valued in excess of $2,500. The charge arose after Higgins, pursuant to a contract with Calvin Sprinkle, accepted $8,750 from Sprinkle for the removal of timber located on and adjacent to property known as "5803 West Barraque Street" in Pine Bluff. Higgins's defense was that he was entitled to sell the timber because he and his fiance, Barbara Shepherd, had entered into a contract to purchase the house and land located at that address, and that he was the equitable owner of the property. Higgins ultimately received a sentence of five years' probation and a $3,000 suspended fine contingent upon his compliance with the conditions of probation. We affirm the judgment.

On November 12, 1994, Higgins and Shepherd entered into an offer and acceptance for the purchase of land located at 5803 West Barraque Street in Pine Bluff, with Rick Pierce and Betty Schrantz signing as the designated sellers. The agreement called for a purchase price of $22,000 and was contingent upon three occurrences: (1) the buyers' obtaining suitable financing; (2) the land having an appraised value equal to or greater than $22,000; and (3) a survey reflecting that the land was three acres or more in size. The offer and acceptance called for possession to be transferred upon closing but allowed the buyers access to the property to make repairs to the house in advance of closing to facilitate financing. The house was in a state of disrepair and had been unoccupied for a period of time.

It developed at trial that the property located at 5803 West Barraque Street contained a parcel of land with 2.76 acres. Immediately adjacent to and west of that property was a strip of land containing 1.1 acres held in the name of a partnership known as "SS & P Partnership." Rick Pierce testified that the partnership was composed of himself, his wife, and her two brothers. A central issue at trial was whether the 1.1 acres of land was included within the agreement to purchase and convey 5803 West Barraque Street. The information charging Higgins with theft stated only that Higgins exercised unauthorized control over timber owned by Rick Pierce. It did not differentiate between timber located on the 2.76 acre tract and timber located on the 1.1 acre tract.

Carroll Austin, the real estate agent who negotiated the sale, testified that he knew the offer and acceptance was based on 3 acres and later assumed that the 1.1 acre tract was included in the sale of the Barraque Street property. But he added that Rick Pierce never represented to him that this was the case. He testified that he told Higgins in person on the morning of February 3, 1995, that the 1.1 acre tract was not part of the 5803 West Barraque Street land sale. Calvin Sprinkle also testified for the prosecution. He explained that he was in the timber business and that he was contacted by Higgins on the night of February 3, 1995, about purchasing some timber. He struck an agreement with Higgins and testified that he cut approximately one acre of timber located on and around Higgins's yard on February 6, 1995. He further related to the jury that on the written contract, Higgins marked out the February 6, 1995 date and back-dated the contract to January 20, 1995. He stated that he could not remember Higgins's explanation for doing this. Sprinkle testified that later that day, Higgins requested immediate payment because he needed to have an operation on his head. Higgins was paid $8,750 for the timber by Sprinkle's company.

Rick Pierce testified that timber had been taken from both the 2.76 acre tract and the 1.1 acre tract. He added that he gave no one the authority to cut the timber. He also testified as to the amount of acreage involved in the sale of 5803 West Barraque Street. He explained that his instructions to Carroll Austin were to sell the house and the land associated with it. He stated that he never intended to sell the 1.1 acre tract, and he confirmed that the two tracts, in fact, had separate owners.

Barbara Shepherd testified for the defense. She stated that when she and Higgins entered into the contract to purchase 5803 West Barraque Street, they were not told that the 1.1 acre tract was excluded. She testified at length as to the expenditures of time and money made by herself and Higgins in renovating the dilapidated property on the 2.76 acre parcel. She also testified about the events leading up to the removal of timber. She stated that on February 3, 1995, Higgins called her at work to tell her that he had learned that the 1.1 acre tract was not included within the sale of the property. She testified that as of that date, a survey had recently been done, reflecting the land to be 3.86 acres in size, thus including both tracts. She stated that it was her belief that a second survey, reflecting only the 2.76 acre tract, was performed after the timber was cut.

Higgins testified in his own defense that he had a contract to purchase both tracts of land. He relied in part on the survey done for 3.86 acres of land and a newspaper advertisement that reflected the 5803 West Barraque Street property was "over 3 acres," to reach this conclusion. He further related to the jury a conversation he had with Carroll Austin on February 3, 1995, which differed dramatically from Austin's rendition of the same event. He stated that Austin came out to the property and was "crying and pacing the floor" and told him he had made a mistake. But according to Higgins, Austin never told him that the 1.1 acre tract was excluded.

As to back-dating the contract between Sprinkle and himself, Higgins explained that he did so because a number of people had come by the property asking to purchase the timber and that he back-dated the contract in order to avoid a conflict and to make it look as though the agreement had been previously negotiated. His reasons for cutting the timber, he said, were for security purposes. He explained that because the property was close to a prison, he feared that escaped inmates would hide in the woods by the home. He explained that he wanted immediate payment from Sprinkle because he needed the money for surgery on his eye and for the removal of air pockets from his mouth.

I. Equitable Conversion

Higgins first challenges his conviction under the doctrine of equitable conversion. At the close of the State's case, Higgins moved for a directed verdict on grounds that he was the equitable owner of the property and that, as a matter of law, there was no showing of the requisite intent to commit the crime because of his good faith belief in his ownership of the timber in question. The motion, which was written and submitted to the court, was denied. Higgins's abstract reflects that he renewed the motion at the close of all the evidence. The State argues that Higgins never obtained a timely ruling from the trial court on his renewal motion, but the State is wrong in this respect. The abstract reflects a ruling, and the record evidences the fact that the trial court denied the renewed motion in chambers at the beginning of the conference on instructions.

The law with respect to the denial of a directed-verdict motion was restated recently in Peeler v. State, 326 Ark. 423, 427, 932 S.W.2d 312, 314 (1996):

A motion for directed verdict is a challenge to the sufficiency of the evidence. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449, 879 S.W.2d 409 (1994). The test is whether the verdict is supported by substantial evidence, direct or circumstantial. Evans v. State, supra; Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another. Evans v. State, supra; Coleman v. State, 314 Ark. 143, 860 S.W.2d 747 (1993). We review the evidence in the light most favorable to the appellee. Id.

A person commits theft of property if he "[k]nowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof." Ark.Code Ann. § 5-36-103(a)(1) (Supp.1995). "Property of another person," as defined by the Arkansas Code, does not include "property in the possession of the actor in which another has only a security interest, even though legal title is in the secured party pursuant to a conditional sales contract or other security agreement." Ark.Code Ann. § 5-36-101(7) (Repl.1993). Higgins urged at trial, as he does now on appeal, that the State failed to prove that the timber was the "property of another person" because of the doctrine of equitable conversion.

Higgins's argument is not persuasive. The offer and acceptance for the sale of the Barraque Street property is unclear on precisely what acreage was included. Both the State and Higgins presented proof on this point. The evidence by the State was that Higgins knew he had no ownership interest in the 1.1 acre tract where much, if not most, of the timber was cut. Carroll Austin testified that he informed Higgins on the morning of February 3, 1995, that the 1.1 acres of land was not included in the offer and acceptance. This testimony was also substantiated by Barbara Shepherd, who testified that Higgins called her at work that day to tell her that he had been told the 1.1 acres was not included. Calvin Sprinkle then revealed that he received a phone call the night of February 3, 1995, regarding the purchase of timber. He also testified...