Bailey v. State

2015 Ark. App. 312

• Court: Court of Appeals of Arkansas
• Decided: May 13, 2015
• Docket: CR-14-946
• Status: Published

Opinion

Cite as 2015 Ark. App. 312

ARKANSAS COURT OF APPEALS DIVISION II No. CR-14-946

Opinion Delivered May 13, 2015 QUINN LEE BAILEY APPELLANT APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION V. [NO. CR-2013-3620]

HONORABLE HERBERT WRIGHT, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

M. MICHAEL KINARD, Judge

Quinn Lee Bailey appeals from his convictions at a bench trial of residential burglary

and theft of property, for which he was placed on supervised probation for a period of three

years, fined $500, and ordered to pay restitution of $2,124. He contends that the convictions

are not supported by substantial evidence. We affirm.

Appellant was charged together with his girlfriend, Toddera Garlington, with

residential burglary and theft of property in connection with the illegal entry into and theft

of certain items from the Little Rock apartment of one of Garlington’s ex-boyfriends, Dione

Morrison. Dione lived with his brother and sister. He returned home from school in the

early afternoon of April 8, 2013, to discover that someone had broken into his apartment

through a back bedroom window and had stolen a number of items, including a television,

a laptop computer, video game systems, and a number of video games. Dione’s sister and Cite as 2015 Ark. App. 312

roommate, LaTonya, corroborated much of Dione’s testimony and noted that a laundry

basket had also been stolen. Dione’s brother and other roommate, Gregory, testified that

Garlington had come to the apartment a day or two earlier asking to retrieve some items.

Gregory refused her request and turned her away.

The Morrisons’ next-door neighbor, Othello Johnson, testified that he saw appellant,

a co-worker, at around noon on April 8. Appellant was with a woman at the apartment

complex where Johnson and the victims lived. Appellant was in front of the Morrisons’

apartment, walking toward a white Honda. He was carrying a laundry basket containing a

television and several other items. The woman whom appellant was with told Johnson that

they had come to get her “stuff” from an ex-boyfriend. Johnson further testified that, within

a couple of hours after seeing appellant carrying the basket and television, appellant sent him

a text message inquiring whether the Morrisons had come home yet.

Testifying in his own defense, appellant admitted that Garlington drives a white

Honda. He further admitted that he had gone to the victims’ apartment with Garlington to

retrieve some things and had seen Johnson and spoken to him. Appellant claimed, however,

that these events occurred the day before the burglary and that he and Garlington had left

empty-handed. He denied that he had ever entered the apartment or taken any property.

On appeal, appellant argues that the evidence is insufficient to support his convictions.

Specifically, he contends that no eyewitness placed him, or anyone whom he was with,

inside the apartment. He also argues that, because the stolen property was never recovered,

2 Cite as 2015 Ark. App. 312

there is insufficient evidence to show that any items that he might have been carrying

actually belonged to the victims. We find no reversible error.

First, we are not convinced that appellant preserved these issues for appeal. In order

to preserve the sufficiency of the evidence as an issue for appeal in a criminal case, one must

make a motion for directed verdict or dismissal at trial. In a bench trial, a motion to dismiss

for insufficient evidence shall be made at the close of all evidence and shall state the specific

grounds for dismissal. Ark. R. Crim. P. 33.1(b). If the defendant moved for dismissal at the

close of the State’s case, then the motion must be renewed at the close of all of the evidence.

Id. A defendant’s failure to challenge the sufficiency of the evidence at the time and in the

manner specified in Rule 33.1(b) constitutes a waiver of any question pertaining to the

sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c). Rule 33.1

is strictly construed. McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003); Hudson v. State,

2014 Ark. App. 305.

Here, appellant moved for dismissal of the charges at the close of the State’s case-in-

chief. At the close of all of the evidence, however, appellant did not renew that motion.

Instead, he made a closing argument in which he asked the trial court to find him not guilty

on grounds that the State had not proved its case beyond a reasonable doubt. As such,

appellant’s argument was insufficient to preserve the issue of sufficiency of the evidence for

appeal. See Grube v. State, 2010 Ark. 171, 368 S.W.3d 58; Rogers v. State, 2011 Ark. App.

2; Higgins v. State, 2010 Ark. App. 442.

3 Cite as 2015 Ark. App. 312

Even were we to conclude that appellant had preserved the issue, however, we would

still affirm. A person commits residential burglary if he enters or remains unlawfully in a

residential structure of another person with the purpose of committing therein any offense

punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). A person

commits theft of property if he knowingly takes or exercises unauthorized control over the

property of another person with the purpose of depriving the owner of the property. Ark.

Code Ann. § 5-36-103(a)(1) (Repl. 2013). When the sufficiency of the evidence is

challenged on appeal from a criminal conviction, we consider only that proof that supports

the conviction and view that evidence and all reasonable inferences deducible therefrom in

the light most favorable to the State. Davis v. State, 2015 Ark. App. 234. The fact-finder is

free to accept or reject any portion of any witness’s testimony. Holland v. State, 2009 Ark.

App. 398. We will affirm if the finding of guilt is supported by substantial evidence. Davis,

supra. Substantial evidence is evidence of sufficient force and character to compel a

conclusion one way or the other without requiring resort to speculation or conjecture. Hicks

v. State, 2012 Ark. App. 667. Circumstantial evidence may constitute substantial evidence

to support a conviction if the evidence excludes every reasonable hypothesis other than that

of the guilt of the accused. Porter v. State, 2012 Ark. App. 139. The question of whether the

circumstantial evidence excludes every reasonable hypothesis consistent with innocence is

for the fact-finder to decide; on review, we must determine whether the fact-finder had to

resort to speculation and conjecture to reach its decision. Id.

4 Cite as 2015 Ark. App. 312

Here, there was eyewitness testimony that appellant was walking away from the

victims’ apartment carrying items of the same nature that were shortly thereafter discovered

to have been recently stolen from inside the apartment. He was with the ex-girlfriend of one

of the victims, and that woman, in appellant’s presence, admitted to the eyewitness that she

and appellant were there retrieving some items from her ex-boyfriend. Considering this

evidence in light of the close proximity in time to the burglary and theft, we conclude that

appellant’s convictions are supported by substantial evidence.

Affirmed.

GLOVER and HIXSON , JJ., agree.

William R. Simpson, Jr., Public Defender; Brandy Turner, Deputy Public Defender; by: Margaret Egan, Deputy Public Defender, for appellant.

Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.