Todd v. State

• Decision Date: 25 May 2016
• Docket Number: No. CR–15–960,CR–15–960
• Citation: 494 S.W.3d 444,2016 Ark. App. 280
• Parties: Michael Todd, Appellant v. State of Arkansas, Appellee
• Court: Arkansas Court of Appeals

2016 Ark. App. 280

494 S.W.3d 444

Michael Todd, Appellant

v.State of Arkansas, Appellee

No. CR–15–960

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered May 25, 2016

Anthony S. Biddle, for appellant.

Leslie Rutledge, Att'y Gen., by: Adam Jackson, Ass't Att'y Gen., Little Rock, for appellee.

BART F. VIRDEN, Judge

A Hempstead County jury convicted appellant Michael Todd of commercial burglary, second-degree forgery, breaking or entering, and theft of property.¹ He was sentenced as a habitual offender to an aggregate term of seventy-five years' imprisonment and ordered to pay $32,500 in fines. Todd raises five points on appeal to this court: (1) the trial court erred in permitting the State to strike a potential juror, (2) the trial court erred in denying his motion to suppress, (3) the trial court erred in admitting Rule 404(b) evidence, (4) the trial court erred in denying his directed-verdict motions, and (5) the trial court erred in denying his motion for a new trial. We affirm in part and reverse and dismiss in part.

I. Jury–Trial Testimony

Ronnie Tucker, an employee at Walmart in Hope, was working in the electronics department on February 19, 2013, when he encountered Todd and another individual, who “kinda stayed in the back.” Tucker testified that Todd expressed interest in a computer and then presented a check for payment. Tucker testified that Feroyri Sampson's name was on the check. Tucker knew Sampson from working with Sampson's girlfriend. Tucker said that, when he looked at the name and then looked back at Todd, Todd abruptly said, “I did something for my brother and he gave me this check and told me to take care of it.” Tucker accepted Todd's explanation because he knew that Sampson had brothers. Tucker testified that Todd selected the auto-check payment option, meaning that the cash register printed the pertinent information on a check and that the customer was then required to sign electronically using a signature pad. Once the transaction was complete, Tucker returned the check to Todd and gave him a printed receipt. Tucker explained that the paper check was no longer needed because the transaction was processed electronically.

Karen Duncan, customer-service supervisor at Walmart, testified that Tucker relayed to her what he described as a “weird” transaction. Duncan stated that, about ninety minutes after that transaction, a man returned the computer purchased by Todd, hoping to get cash back. Duncan, who also knew Sampson, called Sampson's girlfriend to alert her that someone had bought a computer with a check drawn on Sampson's account.

Tonya McLannahan, asset-protection manager for Walmart, testified that she reprinted a transaction receipt using an electronic journal and acquired the electronic signature authorization in connection with the February 19, 2013 transaction. These documents were introduced into evidence. McLannahan said that the transaction number on each document was the same. With the date and a description of the item that was purchased, she was able to find surveillance video of the transaction for police. McLannahan further testified that, although Walmart is a commercial business that is open to the public, Walmart does not grant anyone a license to come into the store and commit crimes. McLannahan said that, to her knowledge, Todd had not been banned from Walmart.

Fallon Langston, Sampson's fiancée, testified that, after receiving a phone call from Duncan, she went to her car and saw that two DVD players were missing, along with Sampson's checkbook. She called Sampson and confirmed that he did not have his checkbook with him in his car. Sampson testified that he did not know Todd and had not given him permission to make a purchase on his behalf. Sampson identified the last four digits of his checking-account number on a reprinted transaction receipt from Walmart.

Otis Featherston, currently an inmate at the Arkansas Department of Correction, testified that he was with Todd on February 19, 2013, at Walmart in Hope. He said that they planned to purchase a computer, return the item for cash, and split the money. According to Featherston, Todd had the check used in their scheme that day. He specifically denied entering Langston's car and giving the checkbook to Todd.

Investigator Justin Crane with the Hempstead County Sheriff's Office testified that on February 19, 2013, Langston reported that two portable DVD players and a checkbook were taken from her vehicle in Hope. Langston relayed to Crane the information that she had received from Duncan. After viewing surveillance video at Walmart, Crane developed Todd as a suspect. After his arrest, Todd was interviewed and made incriminating statements. The video of the entire interview was played for the jury.

In the interview, when asked about breaking or entering involving three vehicles in close proximity, Todd denied taking DVD players. With respect to the checkbook, Todd said, “Now, that I might've had a hand in.” He said, “[T]here was a lot of shit we got into, and I was like, ‘Man, we supposed to be splitting this and that,’ and, you know, he be done got shit I didn't know about. I be checking cars, you know.” Later, Todd said, “I ain't broke into nothing. Them vehicles, I don't never break into nothing. They be open.” Todd said, “I didn't go in but one vehicle in Perrytown.” Crane confronted Todd with the surveillance video from Walmart in Hope. Todd said, “I did the check. The damn laptop, I did.” Todd said, “I just cashed the check, brother. I'll ride with that.” He further said, “You caught me 'cause I was smoking crack and got to slipping and going in Wal–Mart.” Later, Todd said, “But like I say, what you got me on is the Wal–Mart thing. You got me on that.”

Investigator Larry Marion with the Nashville Police Department testified that on March 5, 2013, he received a report from Angela Burgess that someone had stolen checks from her car in Hope and had made unauthorized transactions at Walmart in Nashville. After viewing surveillance video, Marion identified Todd and Featherston as the people responsible for passing the checks. Marion said that Featherston had purchased a computer and that Todd had purchased two Wii consoles and games. Marion testified that Todd subsequently confessed his involvement.

The jury convicted Todd of commercial burglary and second-degree forgery, for which he was sentenced to thirty years' imprisonment for each offense and ordered to pay two $10,000 fines. He was also convicted of breaking or entering, for which he was sentenced to fifteen years' imprisonment and ordered to pay a $10,000 fine. On the theft-of-property conviction, which Todd does not challenge on appeal, he was sentenced to one year in the county jail and ordered to pay a $2,500 fine. The prison sentences were ordered to run consecutively for a total of seventy-five years.

II. Arguments and Discussion

A. Sufficiency of the Evidence

Although it is listed as his fourth point on appeal, we address Todd's challenge to the sufficiency of the evidence first due to double-jeopardy concerns. Fowler v. State, 2015 Ark. App. 579, 474 S.W.3d 120. Todd argues that the trial court erred in denying his directed-verdict motions because there was insufficient evidence to support his convictions. Challenges to the sufficiency of the evidence are considered in the light most favorable to the State, considering only the evidence in favor of the guilty verdict. Piper v. State, 2014 Ark. App. 472, 442 S.W.3d 17. The conviction is affirmed if supported by substantial evidence; that is, evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The fact that evidence is circumstantial does not render it insubstantial. Id. Circumstantial evidence may be used to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion; this determination is a question of fact for the fact-finder. Id. The finder of fact is also tasked with determining what portions of the witnesses' testimony are credible and must resolve all questions of conflicting testimony and inconsistent evidence. Id. The jury is permitted to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence; it is only when circumstantial evidence leaves the jury solely to speculation and conjecture that it is insufficient as a matter of law. Id.

1. Commercial burglary

A person commits commercial burglary if he enters or remains unlawfully in a commercial occupiable structure of another person with the purpose of committing in that structure any offense punishable by imprisonment. Ark.Code Ann. § 5–39–201(b)(1) (Repl. 2013). “Enter or remain unlawfully” means to enter or remain in or upon the premises when not licensed or privileged to do so. Ark.Code Ann. § 5–39–101(2)(A). A person who enters or remains in or upon premises “that are at the time open to the public does so with license and privilege, regardless of his or her purpose, unless he or she defies a lawful order not to enter or remain on the premises.” Ark.Code Ann. § 5–39–101(2)(B)(i) (emphasis added).

Todd contends that there was insufficient evidence to support his conviction for commercial burglary because he did not unlawfully enter or remain at Walmart and had not been banned from the premises. We agree.

In discussing the definition of “enter or remain unlawfully” as used in current section 5–39–101(2)(B), the Original Commentary to section 5–39–201 states that

“[e]nter or remain unlawfully” is defined at § 5–39–101(3) [ (1987) ] so as to exclude entry on premises or parts of premises open to the public. Therefore, contrary to former law, the person who enters a business open to the public for the purpose of shoplifting does not commit a burglary.

(Emphasis added.) Our supreme court in Holian v. State, 2013 Ark. 7, noted that the Original Commentary that accompanied the enactment of the...