Howard v. State
| Decision Date | 09 November 2011 |
| Docket Number | No. CA CR 11–29.,CA CR 11–29. |
| Citation | 2011 Ark. App. 573,386 S.W.3d 106 |
| Parties | Sheva HOWARD, Appellant v. STATE of Arkansas, Appellee. |
| Court | Arkansas Court of Appeals |
OPINION TEXT STARTS HERE
Hurst Q. Byrum Jr., Hot Springs, for appellant.
Dustin McDaniel, Atty. Gen., by: Ashley Argo Priest, Little Rock, for appellee.
[Ark. App. 1]Appellant Sheva Howard was charged by information with one count of Class C felony theft of property.1 Howard was tried by a Pulaski County jury and convicted of theft of property; she was sentenced to five years' supervised probation, a term of sixty days in the Pulaski County jail, a $5000 fine, and 200 hours of community service. On appeal, she raises four arguments: 1) there was insufficient evidence to support her conviction; 2) the State's use of peremptory challenges to exclude black members of the venire violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); 3) the trial court erred in denying her motion for mistrial during the State's closing arguments; and 4) the trial court erred in allowing the State to [Ark. App. 2]introduce evidence of “prior bad acts” pursuant to Arkansas Rule of Evidence 404(b). We find no error and affirm.
Howard, a part-time security guard for Dillard's, was convicted of theft of property for shoplifting three Coach handbags from Dillard's on August 8, 2009. A person commits theft of property if she knowingly “[t]akes 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 of the property[.]” Ark.Code Ann. § 5–36–103(a)(1) (Repl.2006). Theft of property is a Class C felony if the value of the property is less than $2500 but more than $500. Ark.Code Ann. § 5–36–103(b)(2)(A) (Repl.2006).2 In her first point on appeal, Howard contends that her theft conviction was not supported by substantial evidence. In doing so, she raises two separate issues, arguing first that the State failed to prove the value of the handbags and, second, that the State failed to prove that she knew the handbags were in the Dillard's shopping bag she was seen carrying.
The test for determining the sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Lockhart v. State, 2010 Ark. 278, 367 S.W.3d 530. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. Furthermore, this court views the evidence in the light most favorable to the verdict, and [Ark. App. 3]only evidence supporting the verdict will be considered. Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. Circumstantial evidence may be sufficient to support the finding of guilt in a criminal case, but it must exclude every other reasonable hypothesis consistent with innocence. Lockhart, supra;Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). In addition, the credibility of witnesses is an issue for the jury and not this court. The fact-finder is free to believe all or part of the witness's testimony and to resolve questions of conflicting testimony and inconsistent evidence. Rather than reweighing the evidence presented at trial, this court determines whether there is substantial evidence to support the lower court's findings. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).
Howard's first argument pertains to the value of the Coach purses. At trial, Anielle Babinski testified that, in August 2009, she was the accessories sales manager for Dillard's. Babinski identified the three Coach handbags and testified, without objection, that two of the bags had retail prices of $198, as reflected on the attached Coach labels and price tags, and the third bag had a retail price of $268, which Babinski ascertained by looking the bag up on the store computer.
Howard argues on appeal that there was “no evidence ... of the cost to Dillard's to replace the purses,” and she further contends that there was no proof of the amount Dillard's had paid for the purses. Howard notes Babinski's testimony on cross-examination wherein she stated that Howard could have purchased the handbags with a Dillard's employee discount of 25%, thus lowering their “purchase price” to $498. Howard suggests that this [Ark. App. 4]discrepancy in the “price” of the purses caused the jury to have to speculate as to the value of the stolen property, and as such, the evidence was insufficient to support her conviction.
Howard's argument is misplaced. In the prosecution of a theft-of-property charge, the State has the burden of establishing the value of the property. Reed v. State, 353 Ark. 22, 109 S.W.3d 665 (2003); Pace v. State, 2010 Ark. App. 491, 375 S.W.3d 751. “Value” is defined as the market value of a property or service at the time and place of the offense or, if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. Ark.Code Ann. § 5–36–101(12)(A)(i) (Supp.2007); see also Pace, supra. Value may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement, including through the testimony of a witness who actually knows the value of the property. See Moss v. State, 2010 Ark. App. 96, 2010 WL 374178. In the prosecution of a theft committed from a retail merchant, the State may prove the fair market value of the property at issue by presenting the testimony of a store employee who has personal knowledge of the fair market value of the property at issue. Id.
Babinski's testimony, offered without objection, demonstrated her knowledge of the value of the handbags.3 Further, her knowledge was based on the price tag on two of the stolen handbags and the store's computer records showing the price of the third handbag. Where evidence of value in excess of the statutory requirement is introduced in the form of [Ark. App. 5]a price tag, introduced without objection, it is sufficient to establish the value of the stolen property. See Boone v. State, 264 Ark. 169, 568 S.W.2d 229 (1978).
Next, Howard argues that there was insufficient proof that she knowingly had the handbags in her possession. When recovered, the stolen handbags were in an oversized Dillard's shopping bag. Howard asserts that there was no proof that she ever knew that the handbags were in the shopping bag. This argument, too, is without merit.
According to the testimony introduced at trial, when a Dillard's employee wishes to purchase something from the store, such purchase is not to be made during the employee's time on the clock. In addition, if an employee does purchase something, the item is to be taken to the customer-service office to be “package passed,” which means that the employee presents the receipt and the item that was purchased, and the bag is then securely taped and kept in the customer-service department until the end of the employee's shift. Employees are not supposed to put purchases for other employees in the handbag stockroom, nor should an employee carry around his or her purchase while on duty.
Anielle Babinski testified that, in the month leading up to August 8, 2009, Howard contacted Babinski repeatedly, trying to purchase handbags and damaged handbags at a discounted price. Babinski said that she eventually stopped allowing Howard to purchase discounted handbags because Howard had approached her so many times, it was “almost an annoyance.” Babinski stated that she frequently observed Howard in the handbag department with Regina Hampton, a sales associate in that department.
[Ark. App. 6]As noted, Babinski identified at trial three Coach handbags, two of which had been removed from the stockroom. She explained that Coach bags were not sold “off the floor” but were instead only sold out of the stockroom. The bags stored in the stockroom were left in their plastic wrappings to keep them from being damaged. According to the Dillard's inventory system, there were supposed to be four pink Coach bags of a particular style: one on the sales floor and three in the stockroom. Two of the three that were supposed to be in the stockroom were missing out the store's inventory, however, as was a tan bag. Babinski stated that the only people who had access to the stockroom were sales associates who worked in the handbag department.
Babinski also identified the large Dillard's shopping bag in which the Coach purses were found. She stated that the Dillard's bag was an oversized bag that was normally used in the bedding department and was not something that would ordinarily be used in the handbag department, nor was it usually stocked in that department. Babinski also noted that, while there was a sales receipt in the oversized shopping bag, along with a white Guess purse and the three Coach purses, the receipt showed that only the Guess purse—and none of the Coach purses—had been purchased.
Kelly Brimley, an employee of Dillard's, testified that she was one of Regina Hampton's coworkers in the handbag department. Brimley said that she saw Howard, who was on-duty working as a security officer, in the handbag department on the evening of August 8. On that evening, Brimley observed Hampton place an oversized Dillard's shopping bag in the corner of the stockroom.
[Ark. App. 7]Lauren Perme, another sales associate in the handbag department, testified that the Coach purses that Dillard's sells are kept in the stockroom, which is secured by a keypad to which only handbag employees have the key code. Although no one other than handbag employees are supposed to be in the stockroom, Perme said that she had seen Howard in the stockroom with Hampton, rummaging through the Coach purses. About three weeks prior to the incident at issue in this case, Perme saw Howard come out of the stockroom with a Dillard's shopping bag that Howard did not have with...
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