Kennedy v. State, CACR

• Decision Date: 15 March 1995
• Docket Number: No. CACR,CACR
• Citation: 894 S.W.2d 952,49 Ark.App. 20
• Parties: Avery Lynn KENNEDY, Appellant, v. STATE of Arkansas, Appellee. 94-553.
• Court: Arkansas Court of Appeals

Page 952

894 S.W.2d 952

49 Ark.App. 20

Avery Lynn KENNEDY, Appellant, v. STATE of Arkansas, Appellee.

No. CACR 94-553.

Court of Appeals of Arkansas,

Division II.

March 15, 1995.

James W. Haddock, Lake Village, for appellant.

Vada Berger, Asst. Atty. Gen., Little Rock, for appellee.

ROBBINS, Judge.

Appellant Avery Lynn Kennedy was convicted by a jury of felony theft by receiving. He was sentenced to ten years in the Arkansas Department of Correction and fined $5,000.00. Mr. Kennedy now appeals, arguing that the trial court erred in denying his motion for directed verdict. He also contends that the trial court erroneously allowed the prosecution to introduce evidence of his prior criminal conduct. We find no error and affirm.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Glick v. State, 275 Ark. 34, 627 S.W.2d 14 (1982). When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Lukach v. State, supra. In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992).

The evidence in this case shows that appellant's uncle and aunt, Randy and Edna Kennedy, were away from their trailer house when it was burglarized on the evening of January 20, 1993. Randy Kennedy discovered that four of his guns had been stolen and made an insurance claim for the missing weapons. However, at trial Randy Kennedy stated that a 22-250 Springfield rifle had been erroneously claimed as stolen and that he intended to return the money which he had received from his insurance company for that rifle. He explained that, rather than being stolen, he had traded the 22-250 rifle to appellant's father for a calf. One gun, a .308 Remington Rifle, was recovered by police and admitted into evidence at trial. However, Randy Kennedy refused to cooperate with the prosecutor when the prosecutor attempted to establish that the .308 rifle was the same one stolen from Randy Kennedy's home. Randy Kennedy would not testify that it was the same gun, said that he did not want to testify in this case in the first place, and stated that he did not bring from home his list containing the serial numbers of the stolen guns. Presumably, this list could have been used to determine if the gun introduced into evidence was in fact one of those stolen from his trailer.

Keith Lamar White testified that, on the evening of the burglary, he came in contact with appellant and purchased a .308 hunting rifle from him. Mr. White called Deputy Larry Allen the following day and asked him to run a check on the gun. Deputy Allen took possession of the gun and read the serial number to investigator Ronnie Ferguson. Mr. Ferguson, who was the first to investigate this case, advised Deputy Allen to hold the .308 rifle, and it was eventually admitted as evidence.

Officer Ronnie Mankin testified that he stopped the appellant in the early morning hours of January 21, 1993. The appellant consented to a search of his truck, and Officer Mankin discovered a 22-250 rifle. The appellant explained that the gun belonged to his father, and on a later date told Officer Mankin that he did not know where the gun was but that he would not steal from his own family.

Arkansas Code Annotated § 5-36-106 (Repl.1993) provides that "[a] person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen." The statute also provides that, if the value of the stolen property is greater than $200.00, or if the stolen property is a firearm valued at less than $2500.00, the offense is classified as a felony. The appellant now contends that there was insufficient evidence to support his conviction because ownership of the alleged stolen guns was not established. He also asserts that the State failed to prove that the value of the property exceeded $200.00, and thus he was erroneously convicted of a felony.

We find appellant's argument regarding lack of proof of ownership to be without merit. In the case at bar there was substantial evidence that one of the guns in his possession had belonged to his uncle and had been reported stolen. Randy Kennedy testified that he reported a 22-250 rifle stolen (SN# B 6155455) and that he received $599.00 for the theft of this rifle from his insurance company. Officer Mankin testified that he stopped the appellant on the evening of the burglary and discovered in his possession a 22-250 rifle with the same serial number as that reported stolen by Randy Kennedy. This established ownership of the rifle. Randy Kennedy testified at trial that he erroneously reported the rifle stolen and intended to return the $599.00, but the jury was not required to believe this testimony, particularly in light of the fact that Randy Kennedy openly admitted that he wanted the charges against his nephew dropped.

We need not address the appellant's sufficiency argument...