Russell v. State
| Decision Date | 02 November 2006 |
| Docket Number | No. CR 06-180.,CR 06-180. |
| Parties | Billy Joe RUSSELL, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
William R. Simpson, Jr., Public Defender, Mac Carder, Deputy Public Defender, by: Mac Golden and Clint Miller, Deputy Public Defender, Little Rock, AR, for appellant.
Mike Beebe, Att'y Gen., by: Misty Wilson Borkowski, Ass't Att'y Gen., Little Rock, AR, for appellee.
We are asked in this appeal to address an issue of first impression: in a theft-by-receiving case, should the sales tax paid on an item be included when determining the value of the item stolen? Appellant Billy Joe Russell was charged with theft by receiving; the charges stemmed from the theft of a Sears generator that had been purchased by Morris Gilmore. Gilmore testified that he bought the generator on January 18, 2004, and that it cost $499.99, plus $49.99 for an extended warranty and $39.19 in sales tax, for a total of $589.17. The State introduced into evidence Gilmore's sales receipt, which reflected these amounts.
At the conclusion of the State's case, Russell moved for a directed verdict, arguing that the State had not proven that the value of the stolen property was in excess of $500. The trial court denied Russell's motion, giving its reasons in the following colloquy:
DEFENSE: [W]hat was actually paid for
[the] goods was $589 and
some change as the gentleman
had testified. That's the
cost of that generator. The
value of that generator is $
COURT: Well, okay. If he had taken it
back to Sears, he would have
gotten $
DEFENSE: I don't know . .
STATE: Your Honor . .
DEFENSE: Judge, I just don't know if
that is true. Number one
he'd had that generator for
over six months
COURT: That's what he testified to
DEFENSE: If there's no one from Sears
to testify that they would
have accepted it—
COURT: Well, I'm going with what he
testified to on that because I'm
certain that that's the way it
would be.
(Emphasis added.) The trial court denied Russell's renewed directed-verdict motion at the conclusion of the trial and convicted Russell of theft by receiving, sentencing him to ten years in prison.
On appeal, Russell challenges the sufficiency of the evidence supporting the verdict. A motion to dismiss at a bench trial and a motion for a directed verdict at a jury trial are challenges to the sufficiency of the evidence. See Ark. R.Crim. P. 33.1 (2004); Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. See Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. The question of what constitutes the "value" of stolen property, however, is a question of law, which this court reviews de novo. See Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).
As noted above, Russell was convicted of theft by receiving, a Class C felony. A person commits the offense of theft by receiving if he or she "receives, retains, or disposes of stolen property of another person: (1)[k]nowing that the property was stolen; or (2)[h]aving good reason to believe the property was stolen." Ark.Code Ann. § 5-36-106(a) (Repl.2006). The offense is a Class C felony if "[t]he value of the property is less than two thousand five hundred dollars ($2,500) but more than five hundred dollars ($500)[,]" Ark.Code Ann. § 5-35-106(e)(2)(A) (Repl.2006), and a "Class A misdemeanor if otherwise committed." Ark.Code Ann. § 5-36-106(e)(3) (Repl.2006).
"Value" is defined, in pertinent part, as "[t]he market value of a property . . . 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) (Repl.2006). Our court has held that the State has the burden of proving the value of the property stolen, and the preferred method of establishing value is by expert testimony. Reed v. State, 353 Ark. 22, 26-27, 109 S.W.3d 665, 668 (2003); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). However, value may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. Reed, supra (citing Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990)). This court has also held that the original cost of property may be one factor considered by the fact finder in determining market value, as long as it is not too remote in time and relevance. Reed, supra; Jones v. State, 276 Ark. 116, 632 S.W.2d 414 (1982).
Russell argues that the State failed to prove that the value of the stolen generator was in excess of $500. He points out that Gilmore purchased the generator for $499.99, but additionally paid sales taxes of $39.19 and bought an extended warranty for $49.99, making the total of the purchase $589.17.
In his opening brief, Russell raises three basic premises. First, he asserts that, because Gilmore paid Sears only $499.99 for the generator, that amount was the value of the item when it was stolen; it was only after taxes and the purchase of the warranty were added that the monetary figure exceeded $500. Second, he urges that the State failed to prove that the generator was valued in excess of $500 at the time of the offense because there was testimony that the generator showed signs of wear at the time it was stolen and re-sold to another individual named Dennis Chudy. Third, he notes that the trial court ruled that if Gilmore had taken the generator back, he would have received the full amount paid, but the State did not introduce evidence regarding Sears's return policy.
The State does not address this third point in its brief. However, this court as held that it is not proper to leave a fact finder to the individual ideas of that fact finder to determine value. See Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979); Kansas City Southern Ry. Co. v. Biggs, 181 Ark. 818, 28 S.W.2d 68 (1930). The Cannon court further held that, while a fact finder may apply its own common knowledge and experience in concluding that the requisite value has been shown, such experience and common knowledge "are only to be applied to [the] evidence adduced." Cannon, 265 Ark. at 273, 578 S.W.2d at 22 (citing Missouri Pacific R.R. Co. v. Benham, 192 Ark. 35, 89 S.W.2d 928 (1936)). Here, the State adduced no evidence pertaining to Sears's return policies; therefore, the trial court erred in concluding, based on its "certain[ty] that that's the way it would be," that Sears would have refunded the full $589.17 to Gilmore.
We next address an argument that the State does discuss—namely, that the inclusion of the amount paid for the sales tax and the warranty increased the "value" of the generator over the $500 threshold for a Class C felony. We begin our analysis by pointing out that, if the sales tax and warranty amounts are excluded, the State clearly failed to meet its burden of proving that the stolen property was valued in excess of the felony threshold of $500, because the generator itself cost only $499.99.
There is no Arkansas case law directly on point, but the jurisdictions that have considered the issue have generally concluded that a sales tax is not truly a component of the value of a good or service. See, e.g., State v. Kluge, 672 N.W.2d 506, 509 (Iowa Ct.App.2003). Rather, the tax is a Id. At least two lower courts in New York have likewise concluded that the value of stolen goods is the market value of those goods as reflected by the purchase price, exclusive of any levied sales taxes. See People v. Medjdoubi, 173 Misc.2d 259, 661 N.Y.S.2d 502 (1997); People v. Barbuto, 106 Misc.2d 542, 434 N.Y.S.2d 120 (1980); but see People v. Bazo, 139 Misc.2d 1003, 529 N.Y.S.2d 432 (1988) ().
In People v. Medjdoubi, supra, the court reasoned that the purpose of the theft statutes "fixing the higher degrees of crimes is not related to regulating the economic market but to assessing the scale of criminal operations by the defendant." Medjdoubi, 173 Misc.2d at 263, 661 N.Y.S.2d at 506. The court continued as follows:
The Legislature's more serious treatment is predicated upon the worth of the stolen property as reflected by the amount of its dollar value. Imposing greater criminal liability, dependent solely on whether or not sales tax is paid, has no rational relationship to an assessment of the gravity of the larcenous act. Rather, even where the consumer pays the tax, the thief would be arbitrarily penalized because of an inappropriate focus on the added cost to the victim. Such a focus on the economic loss to the victim is a proper consideration when the court is determining what statutorily authorized sentence or amount of restitution it will impose [citations omitted]. The Penal Law does not provide such a process for classifying the level of crime and its attendant criminal penalties. A defendant, found guilty of higher felony level charges due to the addition of sales tax, would be subjected to greater punishment in no way related to a higher level of criminal conduct.
Sales tax does not enhance the value of property. Rather, it is itself calculated based upon the dollar value of the property. It therefore should not...
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