Winters v. State

• Decision Date: 10 March 1993
• Docket Number: No. CA,CA
• Citation: 848 S.W.2d 441,41 Ark.App. 104
• Parties: Vernon WINTERS, Appellant, v. STATE of Arkansas, Appellee. CR 92-14.
• Court: Arkansas Court of Appeals

Page 441

848 S.W.2d 441

41 Ark.App. 104

Vernon WINTERS, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 92-14.

Court of Appeals of Arkansas Division II.

March 10, 1993.

Chet Dunlap, Trumann, for appellant.

Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.

COOPER, Judge.

The appellant in this criminal case was convicted of burglary and theft of property and was sentenced to fifteen years on each count to run consecutively for a total of thirty years in the Arkansas Department of Correction. On appeal, the appellant contends that there was insufficient evidence to support the conviction and that the trial court erred by not finding as a matter of law that the appellant could not be found guilty of burglary because the State did not prove that the buildings which were entered were occupiable structures.

Pursuant to Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), when there is a challenge to the sufficiency of the evidence, we review that point before considering other arguments. On appeal, we review the evidence in the light most favorable to the appellee and affirm if the verdict is supported by substantial evidence. Larue v. State, 34 Ark.App. 131, 806 S.W.2d 35 (1991). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without resort to speculation or conjecture. Kendrick v. State, 37 Ark.App. 95, 823 S.W.2d 931 (1992). In determining whether there is substantial evidence to support the jury's verdict, it is permissible to consider only the testimony that tends to support the verdict of guilt. Franklin v. State, 311 Ark. 601, 845 S.W.2d 525 (1993).

Burglary is committed when a person enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201 (1987). A person commits theft of property if he knowingly 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) (Supp.1991).

Here, the evidence, when viewed in the light most favorable to the State, discloses that on the morning of February 18, 1991, Jim Wyse arrived at work and discovered that a supply room had been broken into at the Craighead Farmers Co-op in Bay, Arkansas, where he worked as branch manager. Upon further inspection, he discovered that several large tractor tires and wheels were missing from the small supply room and from another storage building on the premises. The lock on the supply room's gate had been forcibly removed. Mr. Wyse identified some of the tires taken as Armstrong rice and cane tires and estimated the total value of the tires taken at $4,000.00. Several of the tires were later found behind a cemetery in Lunsford, Arkansas, which is five or six miles from Bay.

Kenneth Walker, Chief of Police in Bay, testified that around 8:30 p.m. on Sunday, February 17, he circled the Co-op premises while on patrol. He stated that he noticed a set of tire tracks leading to the large storage building, but that he did not see a vehicle.

Mr. Purvis DeWayne Carr, an employee of Proctor Tire Company, testified that on the evening of February 17, on his way to an 8:00 p.m. meeting, he noticed a tan or gold Chevrolet pickup driving slowly. He stated that the truck had four rear farm tires in the bed. Mr. Carr was able to identify the tires in the back as being new Armstrong rice and cane tires. Mr. Carr also noticed that the truck did not have a license plate and had three trailer hitch balls on the rear bumper. Mr. Carr stated that he was not able to identify the driver nor did he know if there were any passengers.

The next day, Chief Walker identified the appellant's truck as a suspect vehicle based upon the information given to him by Mr. Carr. The appellant agreed to bring his truck to the police station and Chief Walker testified that when he questioned the appellant regarding the theft of the tires, the appellant gave him conflicting statements. The appellant first stated that he had never dealt in tractor tires, but after rubber marks in the back of his truck were pointed out by Chief Walker, he stated that he did regularly haul tractor tires for his father. Chief Walker noticed that the rubber marks appeared to be fresh since they were soft and unfaded. That afternoon, Mr. Carr identified the appellant's truck at the police station as the one he had seen carrying the tires on the previous night.

The appellant gave Chief Walker the names of two alibi witnesses, Brenda Ratliff and Sandy Jones. Ms. Jones testified that on the afternoon of February 17, 1991, the appellant, Raymond Warden, and a woman named Donna came to the apartment that Ms. Jones shared with Brenda Ratliff. The appellant and Mr. Warden later drove Ms. Jones and Donna to a club around 6:00 or 7:00 p.m., and left them there. Ms. Jones stated that she became very intoxicated and did not recall seeing appellant or Mr. Warden again that evening. Ms. Jones testified that the appellant asked her to state that he had been with her all night on February 17. She initially told the police that she had been with the appellant but later changed her statement after receiving threats from the appellant and Mr. Warden. Ms. Jones also testified that Mr. Warden had offered her money to keep her mouth shut.

Brenda Ratliff testified that around 6:00 p.m. on the evening of February 17, the appellant, Mr. Warden, Donna, and Arlon Dale Ingram arrived at her apartment around 6:00 p.m. in the appellant's truck. She stated that she did not go to the club with the others and that sometime after midnight, Ms. Jones, Mr. Warden, Donna, and the appellant returned to her apartment. She further testified that the appellant subsequently told her that he "did what they said I did" and wanted her to state that he had been at her apartment all evening. When she inquired about the money and the tires, the appellant stated he "couldn't touch that." She stated that she was present when Mr. Warden offered Ms. Jones money to keep quiet and that she suggested Ms. Jones get the money up front. She also stated that the appellant and Mr. Warden had been threatening them. Raymond Warden testified for the defense that he and the appellant owned the truck in partnership. He stated that he was with the appellant and Arlon Dale Ingram until about 7:00 p.m. on February 17, until the appellant took Mr. Warden to his mother's home. He stated that he spoke with the appellant on the telephone forty-five minutes later and saw him again the next morning around 7:00 a.m. Arlon Dale Ingram testified that on the evening of February 17, he left work at the Chapparal Bar and drove his own vehicle to the...