Brasuell v. State

2015 Ark. App. 559, 472 S.W.3d 499, 2015 Ark. App. LEXIS 635
Court of Appeals of Arkansas·Decided October 7, 2015·No. CR-15-131·Published·Cited by 3 cases

Opinion

LARRY D. VAUGHT, Judge

|, Appellant Jeffery Brasuell was found guilty by a Crawford County jury of commercial burglary and theft of property. He was sentenced to the Arkansas Department of' Correction for twenty-five years for the commercial-burglary conviction and to the county jail for one year for the theft-of-property conviction, to be served concurrently. On appeal, he argues that the evidence is insufficient to support the commercial-burglary conviction and that the trial court abused its discretion in introducing evidence in violation of Arkansas Rule of Evidence 404(b). We affirm.

Brasuéll was charged with commercial burglary and theft of property for shoplifting at a Wal-Mart in Van Burén, Arkansas, on December 5, 2013. Brasuell moved in limine to exclude evidence of subsequent charges filed against him relating to four shoplifting incidents that occurred at the same Wal-Mart store in October and November 2014. At the pretrial hearing, Brasuell argued' that evidence of these subsequent four incidents was inadmissible character ^evidence pursuant to' Rule 404(a) of the Arkansas Rules of Evidence and that the evidence was not admissible for any other purpose outlined under Rule 404(b). He also argued that the evidence was not admissible because the October and November 2014 incidents occurred after the December 5, 2013 incident for which he was being prosecuted; they were not similar to the December 5 act; and there was too much time between the ocr currences. The trial court denied the motion in limine.

At trial, Jonathan Murphy, a Wal-Mart asset-protection employee, testified that he observed video surveillance from December 5, 2013, showing a man (later-identified as Brasuell) going into the store, buying two items, leaving the store, returning, concealing an air filter in his pants, and leaving the store without paying for the air filter and a container of oil. Murphy recorded the license-plate number of the man who had stolen the items and reported the incident to the police a couple of days later. Using the license-plate information, the police were led to Brasuell.

.Murphy also testified that on October 23, 2010, Brasuell had been banned from all Wal-Mart stores as evidenced by a document that Brasuell had signed on that date. Murphy said that Wal-Mart employees are not advised of, and cannot identify, those who have been banned from the store, and he said that it is possible— as it happened in this case — for someone who has been banned from the store to enter unlawfully and make purchases without being apprehended.

Joseph Cole, an asset-protection manager at Wal-Mart, testified-that on October 10,12, 25, and November 11, 2014, surveillance video showed Brasuell shoplifting. On the first three dates, Cole testified that Brasuell was seen at self-check stations bagging items, for' which he did | ¡¡not scan or pay, and leaving the store with those items. Cole testified that on November 11, 2014, he reviewed surveillance video of Brasuell placing a tool set in his cart and leaving the Wal-Mart store without paying fyr it. Another Wal-Mart employee, Nathan Jones, witnessed Brasuell placing the tool set into his cart and exiting the store without paying for it. ■ Colé testified that he filed police reports regarding these subsequent incidents.

At the conclusion of the State’s case, Brasuell moved for a directed verdict, arguing that there was insufficient evidence to support the commercial-burglary charge. Specifically, he argued that there was no evidence that he had been in the Wal-Mart unlawfully. He contended that the evidence demonstrated that he had been in and out of the Wal-Mart buying things; therefore, Wal-Mart had revoked the ban. He also argued that the State failed to prove.that he had the requisite intent to commit a crime when he entered the store. The trial court denied the motion. After Brasuell rested and renewed his motion, which was. denied, the. jury returned guilty verdicts for commercial burglary,and theft of property. . This appeal followed.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Woodson v. State, 2009 Ark. App. 602, at 7, 374 S.W.3d 1, 5. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id., 374 S.W.3d at 5. Evidence is substantial if it is of sufficient force and character to. compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id., 374 S.W.3d at 5. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id., 374 S.W.3d at 5.

| ¿Weighing the evidence and assessing the credibility of the witnesses are matters for the fact-finder. Id., 374 S.W.3d at 5. The jury is free to believe all or part of any witness’s testimony and resolves questions of conflicting testimony and inconsistent evidence. Id., 374 S.W.3d at 5. Reconciling conflicts.in the testimony and weighing the evidence are matters within the exclusive province of the jury. Id., 374 S.W.3d at 5.

Brasuell’s first point on appeal is that the trial court erred in denying his motions for directed verdict, contending that there was insufficient evidence to support the commercial-burglary conviction. 1 Specifically, he argues that there was a lack of substantial evidence that he had been in Wal-Mart unlawfully.

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 the commercial occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(b)(l) (Repl. 2013). To “enter or remain unlawfully” means “to enter or remain in or upon premises when not licensed or privileged to enter or remain in or upon the premises.” Ark.Code Ann. § 5-39-101(2)(A) (Repl. 2013).

In this case, Brasuéll signed a document entitled “Notification of Restriction from Property,” which provided as follows:

Wal-Mart can prohibit individuals from entering its property who interfere with its business, shoplift, destroy property, or otherwise behave in a manner that is unacceptable to Wal-Mart. Wal-Mart has determined you have engaged in conduct sufficient to necessitate limiting your access to Wal-Mart property. This document constitutes formal notice and warning that you are no longer allowed on, Wal-Mart property or in any area subject to Wal-Mart’s control. This restriction -on entry includes, but is not limited to, all | KWal-Mart retail locations. Should you elect to ignore this notice and enter Wal-Mart property, Wal-Mart may contact law enforcement and request you be charged with criminal trespass.

The acknowledgment of receipt, included in the notification, provided “I have read and understand this notice, or in the alternative, have had it read to me and understand and acknowledge that as of [October 23, 2010] I am prohibited from entering Wal-Mart property. I understand this notice will remain in effect until Wal-Mart rescinds it.” Brasuell, along with a Wal-Mart manager, signed the acknowledgment.

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Brasuell v. State, 2015 Ark. App. 559, 472 S.W.3d 499, 2015 Ark. App. LEXIS 635 (Ark. Ct. App. 2015).

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