Cite as 2021 Ark. App. 400 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION IV 2023.07.12 12:18:37 -05'00' No. CR-21-128 2023.003.20215 JIMMY MARION BAUGH Opinion Delivered October 20, 2021 APPELLANT APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT V. [NO. 40CR-19-18]
STATE OF ARKANSAS HONORABLE ALEX GUYNN, APPELLEE JUDGE
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Jimmy Baugh appeals the amount of restitution ordered by the Lincoln County
Circuit Court after he pleaded guilty to the offense of obstructing governmental operations.
The events leading up to his plea involved cattle belonging to his neighbor, Gerry Harris.
Harris’s cattle crossed over to Baugh’s land through a broken fence in January 2019 and
remained on Baugh’s land. Baugh ultimately paid to have the cattle rounded up and taken
to auction, where eight cows and a calf belonging to Harris were sold for $4,204.27. After
deducting expenses, Baugh delivered the remainder of the proceeds, $2,860.97, in the form
of a check to the Lincoln County Sheriff’s Office in the name of both the sheriff’s office
and Harris. Harris claimed he lost thirteen cattle due to Baugh’s actions. Because the
amount of restitution due Harris could not be agreed on, a hearing was held in June 2020.
The Lincoln County Circuit Court ordered Baugh to pay Harris $12,008.54 in restitution.
Baugh now appeals, arguing that the restitution amount was excessive and not consistent with the value of the cattle; the circuit court erred in relying on the testimony of State
witness Aubrey Barksdale, because the State failed to offer any proof as to the value of the
lost property at the time it was sold; there was no actual economic loss to Harris; and the
appropriate measure of loss was eight cows and one calf, not thirteen cows. We affirm.
A defendant who is found guilty or who enters a guilty plea or nolo contendere to
an offense may be ordered to pay restitution. Ark. Code Ann. § 5-4-205(a)(1) (Supp. 2021).
The sentencing authority, whether the circuit court or a jury, shall make a determination
of actual economic loss caused to the victim by the offense. Ark. Code Ann. § 5-4-205
(b)(1). In bench trials, the standard of review on appeal is not whether there is substantial
evidence to support the finding of the circuit court, but whether the court’s findings were
clearly erroneous or clearly against the preponderance of the evidence. El Paso Prod. Co. v.
Blanchard, 371 Ark. 634, 269 S.W.3d 362 (2007). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire evidence is left
with a firm conviction that an error has been committed. Id. Facts in dispute and
determinations of credibility are within the province of the fact-finder. Id.
Baugh’s first two points are best addressed together. He argues the amount of
restitution ordered by the circuit court was excessive and inconsistent with the actual value
of the cattle, and relying on the testimony of Harris and Barksdale was erroneous because
the State offered no proof as to the value of the cattle at the time they were was sold. Baugh
contends that the only valuation of the cattle was $4,204.27, the amount the eight cows and
one calf brought at auction.
2 Harris testified at the restitution hearing that thirteen head of his cattle ended up on
Baugh’s property due to a fence that had washed out. Harris claimed that he tried to retrieve
his cattle, but the gates were locked, and Baugh would not allow him to access the gates
and refused to return the cattle to him. Harris said he called the police, who came out to
attempt to assist, but Baugh would not respond to them. Harris said he later learned that
Baugh had sold eight cows and one calf, but he claimed that the cattle were not sold at a
fair price because the market was low. He explained that the cows were bred cows (cows
due to have calves that had been bred with his bull), that he earned some of his money from
selling the calves after they were born, and that there was no reason for him to sell the cows
at that point because he was using them to produce calves. Harris testified that the value of
the nine cows sold was about $8,400, and the value of the other four cows was $1,200 each
and another year’s crop of calves. He said he did not just lose the cows in question but also
what they could have made by producing calves.
Aubrey Barksdale testified that he is familiar with the cattle business and has a good
eye for what cattle should look like and what they sell for; he explained that the value of an
animal at any given time is not really its value on the open market. Barksdale testified that
cows that were pregnant would be worth anywhere from $1,000 to $1,150 but that most
people would not sell young cows because the younger the cows were in the herd, the
longer longevity there was for the herd. Barksdale admitted on cross-examination that his
estimates relied on Harris’s assertions that the cows were all young and pregnant, and he
agreed that a calf would probably not be worth as much as a pregnant cow.
3 Baugh claimed Harris’s cows were wild and starving. He testified that one of his
employees called Harris about the cattle, but Harris never came to get them, so after about
ten days, he had the cattle rounded up and taken to auction, where they were sold. Baugh
blamed the price Harris’s cattle brought on their poor condition. Baugh said that he did
not keep any of Harris’s cattle, but he admitted that he had some of Harris’s cattle in his
holding pen that he had turned out because he had to use the pen. Baugh asserted those
cows either went to Harris’s property or to another neighbor’s property after they were
released.
Baugh cites Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006), in support of his
argument that the amount the cattle brought at auction should be the amount of restitution
owed. In Jester, the circuit court ordered that $180,000 be paid as restitution for wrongfully
cut timber; our supreme court affirmed that figure, holding that restitution for the
unauthorized cutting of timber should represent the value of the trees as they stood on the
property before they were cut down and milled because the goal of restitution is to make
the victim whole, and the restitution amount “should accurately reflect the amount of
economic loss” suffered by the victim. Jester, 367 Ark. at 254, 239 S.W.3d at 489.
Jester supports the circuit court’s restitution award in this case. Disputed facts and
credibility determinations are within the province of the fact-finder. El Paso Prod. Co.,
supra. Harris testified that he would not have sold his cattle in January 2019 because they
were young and used for breeding and that he earned some of his money by selling the
calves after they were born. He estimated the nine cows sold were worth $8,400, and the
other missing cows were worth $1,200 each. The circuit court had evidence before it, if
4 determined to be credible, that would support the amount of restitution ordered. We
cannot say the circuit court’s decision is clearly erroneous.
In his next point, Baugh argues that the testimony at the restitution hearing suggested
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Cite as 2021 Ark. App. 400 Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION IV 2023.07.12 12:18:37 -05'00' No. CR-21-128 2023.003.20215 JIMMY MARION BAUGH Opinion Delivered October 20, 2021 APPELLANT APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT V. [NO. 40CR-19-18]
STATE OF ARKANSAS HONORABLE ALEX GUYNN, APPELLEE JUDGE
AFFIRMED
STEPHANIE POTTER BARRETT, Judge
Jimmy Baugh appeals the amount of restitution ordered by the Lincoln County
Circuit Court after he pleaded guilty to the offense of obstructing governmental operations.
The events leading up to his plea involved cattle belonging to his neighbor, Gerry Harris.
Harris’s cattle crossed over to Baugh’s land through a broken fence in January 2019 and
remained on Baugh’s land. Baugh ultimately paid to have the cattle rounded up and taken
to auction, where eight cows and a calf belonging to Harris were sold for $4,204.27. After
deducting expenses, Baugh delivered the remainder of the proceeds, $2,860.97, in the form
of a check to the Lincoln County Sheriff’s Office in the name of both the sheriff’s office
and Harris. Harris claimed he lost thirteen cattle due to Baugh’s actions. Because the
amount of restitution due Harris could not be agreed on, a hearing was held in June 2020.
The Lincoln County Circuit Court ordered Baugh to pay Harris $12,008.54 in restitution.
Baugh now appeals, arguing that the restitution amount was excessive and not consistent with the value of the cattle; the circuit court erred in relying on the testimony of State
witness Aubrey Barksdale, because the State failed to offer any proof as to the value of the
lost property at the time it was sold; there was no actual economic loss to Harris; and the
appropriate measure of loss was eight cows and one calf, not thirteen cows. We affirm.
A defendant who is found guilty or who enters a guilty plea or nolo contendere to
an offense may be ordered to pay restitution. Ark. Code Ann. § 5-4-205(a)(1) (Supp. 2021).
The sentencing authority, whether the circuit court or a jury, shall make a determination
of actual economic loss caused to the victim by the offense. Ark. Code Ann. § 5-4-205
(b)(1). In bench trials, the standard of review on appeal is not whether there is substantial
evidence to support the finding of the circuit court, but whether the court’s findings were
clearly erroneous or clearly against the preponderance of the evidence. El Paso Prod. Co. v.
Blanchard, 371 Ark. 634, 269 S.W.3d 362 (2007). A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court on the entire evidence is left
with a firm conviction that an error has been committed. Id. Facts in dispute and
determinations of credibility are within the province of the fact-finder. Id.
Baugh’s first two points are best addressed together. He argues the amount of
restitution ordered by the circuit court was excessive and inconsistent with the actual value
of the cattle, and relying on the testimony of Harris and Barksdale was erroneous because
the State offered no proof as to the value of the cattle at the time they were was sold. Baugh
contends that the only valuation of the cattle was $4,204.27, the amount the eight cows and
one calf brought at auction.
2 Harris testified at the restitution hearing that thirteen head of his cattle ended up on
Baugh’s property due to a fence that had washed out. Harris claimed that he tried to retrieve
his cattle, but the gates were locked, and Baugh would not allow him to access the gates
and refused to return the cattle to him. Harris said he called the police, who came out to
attempt to assist, but Baugh would not respond to them. Harris said he later learned that
Baugh had sold eight cows and one calf, but he claimed that the cattle were not sold at a
fair price because the market was low. He explained that the cows were bred cows (cows
due to have calves that had been bred with his bull), that he earned some of his money from
selling the calves after they were born, and that there was no reason for him to sell the cows
at that point because he was using them to produce calves. Harris testified that the value of
the nine cows sold was about $8,400, and the value of the other four cows was $1,200 each
and another year’s crop of calves. He said he did not just lose the cows in question but also
what they could have made by producing calves.
Aubrey Barksdale testified that he is familiar with the cattle business and has a good
eye for what cattle should look like and what they sell for; he explained that the value of an
animal at any given time is not really its value on the open market. Barksdale testified that
cows that were pregnant would be worth anywhere from $1,000 to $1,150 but that most
people would not sell young cows because the younger the cows were in the herd, the
longer longevity there was for the herd. Barksdale admitted on cross-examination that his
estimates relied on Harris’s assertions that the cows were all young and pregnant, and he
agreed that a calf would probably not be worth as much as a pregnant cow.
3 Baugh claimed Harris’s cows were wild and starving. He testified that one of his
employees called Harris about the cattle, but Harris never came to get them, so after about
ten days, he had the cattle rounded up and taken to auction, where they were sold. Baugh
blamed the price Harris’s cattle brought on their poor condition. Baugh said that he did
not keep any of Harris’s cattle, but he admitted that he had some of Harris’s cattle in his
holding pen that he had turned out because he had to use the pen. Baugh asserted those
cows either went to Harris’s property or to another neighbor’s property after they were
released.
Baugh cites Jester v. State, 367 Ark. 249, 239 S.W.3d 484 (2006), in support of his
argument that the amount the cattle brought at auction should be the amount of restitution
owed. In Jester, the circuit court ordered that $180,000 be paid as restitution for wrongfully
cut timber; our supreme court affirmed that figure, holding that restitution for the
unauthorized cutting of timber should represent the value of the trees as they stood on the
property before they were cut down and milled because the goal of restitution is to make
the victim whole, and the restitution amount “should accurately reflect the amount of
economic loss” suffered by the victim. Jester, 367 Ark. at 254, 239 S.W.3d at 489.
Jester supports the circuit court’s restitution award in this case. Disputed facts and
credibility determinations are within the province of the fact-finder. El Paso Prod. Co.,
supra. Harris testified that he would not have sold his cattle in January 2019 because they
were young and used for breeding and that he earned some of his money by selling the
calves after they were born. He estimated the nine cows sold were worth $8,400, and the
other missing cows were worth $1,200 each. The circuit court had evidence before it, if
4 determined to be credible, that would support the amount of restitution ordered. We
cannot say the circuit court’s decision is clearly erroneous.
In his next point, Baugh argues that the testimony at the restitution hearing suggested
there was no actual economic loss to Harris because Relyance Bank had loaned Harris
money and had taken a security interest in a herd of cattle; Harris had defaulted on the loan;
and Relyance had obtained an order of delivery for the herd of cattle in September 2018.
Steve White, vice president of agricultural lending at Relyance, testified that Harris did not
turn over the cattle, telling Relyance in January 2019 that the cattle were deceased and that
he did not own any cattle. White did not know if the cattle in which Relyance had a
security interest were the same cattle sold by Baugh or the other missing cattle.
Baugh argues on appeal that because Relyance had obtained an order of delivery of
its collateral in September 2018, and Harris lied about not owning cattle in January 2019,
Harris suffered no actual economic loss. He contends that the issue is who is entitled to
restitution, suggesting that Relyance is “likely the party entitled to the sales proceeds” given
its order of delivery and arguing that if the circuit court’s decision is affirmed, Harris will
receive restitution resulting from the sale of cattle to which he had no right to possess.
However, at the restitution hearing, Baugh’s only argument was that if the circuit
court ordered restitution, Relyance would have to be included on the check because it had
an order of delivery. Baugh has changed his argument on appeal; therefore, it cannot be
addressed. Parties are bound on appeal by the scope and nature of the objections and
arguments presented at trial, and arguments that have not been raised at trial will not be
addressed. Milton v. State, 83 Ark. App. 42, 137 S.W.3d 402 (2003). Because Baugh did
5 not raise this argument to the circuit court, we are precluded from reaching it on appeal.
Brown v. State, 375 Ark. 499, 292 S.W.3d 288 (2009).
In his last point, Baugh contends that the record of the restitution hearing includes
“suggestions” that he stole thirteen of Harris’s cows. He argues that this court should reject
that contention and make clear that the proper amount of restitution should reflect only the
eight cows and one calf he delivered to the livestock auction. Citing Bogard v. State, 2014
Ark. App. 700, at 3-4, 450 S.W.3d 690, 691, he states that “it is error for a defendant to be
ordered to pay restitution for offenses with which he has not been charged or to which he
did not plead guilty or no contest.” Baugh conceded he sold eight cows and one calf and
admitted penning four additional cows that were released and whose whereabouts are
unknown. He now argues that because he had not pleaded guilty to, or been convicted of,
stealing thirteen cows, he cannot, as a matter of law, be ordered to pay restitution for more
than nine head of cattle.
There was not a number of cows specified at the plea hearing where Baugh pleaded
guilty to obstructing governmental operations. Harris testified at the restitution hearing that
he was missing a total of thirteen cows. As discussed above, there was evidence before the
circuit court that would support the amount of restitution ordered.
Affirmed.
HARRISON, C.J., and KLAPPENBACH, J., agree.
ARK AG LAW, PLLC, by: J. Grant Ballard, for appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.