Cite as 2019 Ark. App. 434 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.28 14:49:23 DIVISION III -05'00' No. CR-19-202 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 2, 2019 ROBERT COBB APPELLANT APPEAL FROM THE MARION COUNTY CIRCUIT COURT V. [NO. 45CR-17-102]
STATE OF ARKANSAS HONORABLE GORDON WEBB, APPELLEE JUDGE
AFFIRMED
MEREDITH B. SWITZER, Judge
Appellant Robert Cobb was convicted by a Marion County Circuit Court jury of
one count each of residential burglary, attempted breaking or entering, criminal mischief in
the first degree, theft of a firearm, and theft of property, and two counts of breaking or
entering. Cobb was sentenced as a habitual offender. The circuit court ordered that the
convictions for residential burglary, attempted breaking or entering, theft of a firearm, and
theft of property be served consecutively, with the first-degree-criminal-mischief and the
two breaking-or-entering convictions to be served concurrently with the other convictions,
for a total of fifty-five years’ incarceration. On appeal, Cobb argues the circuit court erred
in denying his motions for directed verdict on all seven counts. We affirm.
I. Facts
At trial, testimony established that on November 18, 2017, William Wood
discovered that Robert Barron’s residence and outbuildings in Summit, Arkansas, had been broken into. Wood, a friend of Barron’s, knew Barron was out of state for an extended
period, and he was checking on Barron’s property, which was marked with no trespassing
signs. Wood explained that Barron’s driveway had a locked gate, so he had entered the
property using the power-line right-of-way. Wood noticed some items strewn about the
property, and he knew that when he had been to the property less than a month before to
read the water meter, the property was in “perfect” condition. Wood called the Marion
County Sheriff’s Office to report the break-in.
The officers who responded also had to access the property using the power-line
easement due to the lock on the gate across the driveway, and they reported numerous items
strewn up and down the road, including bags and boxes of tools and a trash can filled with
tools located at the bottom of the power-line easement. Doors on two sheds were open
and the buildings had been rummaged through, and the sliding glass door to Barron’s house
had been broken. Officers observed that a camper trailer on the property had pry marks on
the door; it appeared an attempt had been made to enter the camper, but the door was
locked. When Wood received permission from Barron for the officers to enter the house,
they discovered the power had been shut off. Barron told them that the power was on
when he left. Officers described the house as “completely destroyed”; every room had been
ransacked, items were gathered in piles throughout the house as though someone was
coming back to remove the remaining items, televisions were missing, and the hinges and
door of a heavy-duty fireproof gun safe had been removed. Barron informed the officers
that he had guns in the safe; all the guns were missing.
2 While investigating the break-in, officers observed two males walking down the road
from the locked, gated driveway at the front of the property. As the two men initially
approached the house they were walking normally, but then they were described by officers
as beginning to walk “suspiciously” in a crouched, sneaking position the closer they got to
the house, and one man began walking to the front of the residence while the other man
headed toward the rear of the residence. The men were later identified as Cobb and
Anthony Contreras. When officers told the two men to freeze, Cobb began to run from
the scene, but he eventually obeyed orders to halt. When apprehended, Cobb had a gray
backpack and a ratchet in his hand. When asked why he was on the property, Cobb stated
they were going to Allen’s Grocery and this was a shortcut; however, one officer testified
Allen’s Grocery was in the opposite direction, and it was unnecessary for the men to cross
Barron’s property to get to the grocery. Cobb then asked the officers “what the f***” they
were doing there and how did they get there.
Officers were able to obtain pictures taken by a game camera located outside the
residence. While unable to see the man’s face, the pictures showed a man wearing a tan
shirt, pants, a camouflage hat, and white tennis shoes and holding a laundry basket full of
items. One officer testified he saw Cobb wearing a hat and shoes resembling the ones in
the game-camera pictures.
Robert Barron testified that his property sits on thirty lots, which are all wooded
except the area around the house. He said his driveway gate was locked when he went out
of town, but someone could go around the gate or climb it if they wanted to do so. He
explained that he had two game cameras outside; one had been stolen and the other had
3 not. Barron described his house as more or less “demolished” and “trashed” on the inside.
The power had been turned off; Barron believed the alarms scared the person who had
entered the house and turning off the power silenced the alarms. Barron testified that two
small safes containing birth certificates, car titles, silver, gold, coins, and his grandfather’s
gold watches were torn from the wall where they had been bolted to the sheetrock, and
they had been removed from the premises. He said insurance paid him $10,000 for the loss
of his property and another $4,000 for the loss of his guns, but he estimated his total loss
was around $35,000, and insurance did not cover the silver, gold, or his tools. He said some
of the items taken from his shop building included generators, a power washer, and bicycles,
and he believed someone was coming back because his large air compressor had been placed
by the door. Barron testified that the backpack and ratchet found on Cobb when he was
apprehended looked like his property. He explained that there had also been an attempt to
enter his thirty-two-foot camper by prying the door, but it was locked; he estimated it
would cost at least $500 to replace the door, so he had simply attempted to hammer the
frame back to its original shape.
When the State rested its case, Cobb moved for a directed verdict on all counts,
arguing there was no evidence he was the person who entered Barron’s property and
committed the offenses. He contended that he had found the items in his possession when
he was apprehended (the backpack and the rachet) on the easement, and it was not a crime
to pick up misplaced or abandoned property. This motion was denied. Cobb presented no
witnesses. He renewed his motion for directed verdict, which was again denied. The jury
returned guilty verdicts on all counts.
4 II. Standard of Review
A directed-verdict motion is a challenge to the sufficiency of the evidence. Sanford
v. State, 2019 Ark. App. 10, 567 S.W.3d 553. Our test for determining the sufficiency of
the evidence is whether the verdict is supported by substantial evidence, direct or
circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion
one way or the other beyond suspicion and conjecture. Hamrick v. State, 2019 Ark. App.
298, 577 S.W.3d 734.
The law makes no distinction between circumstantial and direct evidence when
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Cite as 2019 Ark. App. 434 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.28 14:49:23 DIVISION III -05'00' No. CR-19-202 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 2, 2019 ROBERT COBB APPELLANT APPEAL FROM THE MARION COUNTY CIRCUIT COURT V. [NO. 45CR-17-102]
STATE OF ARKANSAS HONORABLE GORDON WEBB, APPELLEE JUDGE
AFFIRMED
MEREDITH B. SWITZER, Judge
Appellant Robert Cobb was convicted by a Marion County Circuit Court jury of
one count each of residential burglary, attempted breaking or entering, criminal mischief in
the first degree, theft of a firearm, and theft of property, and two counts of breaking or
entering. Cobb was sentenced as a habitual offender. The circuit court ordered that the
convictions for residential burglary, attempted breaking or entering, theft of a firearm, and
theft of property be served consecutively, with the first-degree-criminal-mischief and the
two breaking-or-entering convictions to be served concurrently with the other convictions,
for a total of fifty-five years’ incarceration. On appeal, Cobb argues the circuit court erred
in denying his motions for directed verdict on all seven counts. We affirm.
I. Facts
At trial, testimony established that on November 18, 2017, William Wood
discovered that Robert Barron’s residence and outbuildings in Summit, Arkansas, had been broken into. Wood, a friend of Barron’s, knew Barron was out of state for an extended
period, and he was checking on Barron’s property, which was marked with no trespassing
signs. Wood explained that Barron’s driveway had a locked gate, so he had entered the
property using the power-line right-of-way. Wood noticed some items strewn about the
property, and he knew that when he had been to the property less than a month before to
read the water meter, the property was in “perfect” condition. Wood called the Marion
County Sheriff’s Office to report the break-in.
The officers who responded also had to access the property using the power-line
easement due to the lock on the gate across the driveway, and they reported numerous items
strewn up and down the road, including bags and boxes of tools and a trash can filled with
tools located at the bottom of the power-line easement. Doors on two sheds were open
and the buildings had been rummaged through, and the sliding glass door to Barron’s house
had been broken. Officers observed that a camper trailer on the property had pry marks on
the door; it appeared an attempt had been made to enter the camper, but the door was
locked. When Wood received permission from Barron for the officers to enter the house,
they discovered the power had been shut off. Barron told them that the power was on
when he left. Officers described the house as “completely destroyed”; every room had been
ransacked, items were gathered in piles throughout the house as though someone was
coming back to remove the remaining items, televisions were missing, and the hinges and
door of a heavy-duty fireproof gun safe had been removed. Barron informed the officers
that he had guns in the safe; all the guns were missing.
2 While investigating the break-in, officers observed two males walking down the road
from the locked, gated driveway at the front of the property. As the two men initially
approached the house they were walking normally, but then they were described by officers
as beginning to walk “suspiciously” in a crouched, sneaking position the closer they got to
the house, and one man began walking to the front of the residence while the other man
headed toward the rear of the residence. The men were later identified as Cobb and
Anthony Contreras. When officers told the two men to freeze, Cobb began to run from
the scene, but he eventually obeyed orders to halt. When apprehended, Cobb had a gray
backpack and a ratchet in his hand. When asked why he was on the property, Cobb stated
they were going to Allen’s Grocery and this was a shortcut; however, one officer testified
Allen’s Grocery was in the opposite direction, and it was unnecessary for the men to cross
Barron’s property to get to the grocery. Cobb then asked the officers “what the f***” they
were doing there and how did they get there.
Officers were able to obtain pictures taken by a game camera located outside the
residence. While unable to see the man’s face, the pictures showed a man wearing a tan
shirt, pants, a camouflage hat, and white tennis shoes and holding a laundry basket full of
items. One officer testified he saw Cobb wearing a hat and shoes resembling the ones in
the game-camera pictures.
Robert Barron testified that his property sits on thirty lots, which are all wooded
except the area around the house. He said his driveway gate was locked when he went out
of town, but someone could go around the gate or climb it if they wanted to do so. He
explained that he had two game cameras outside; one had been stolen and the other had
3 not. Barron described his house as more or less “demolished” and “trashed” on the inside.
The power had been turned off; Barron believed the alarms scared the person who had
entered the house and turning off the power silenced the alarms. Barron testified that two
small safes containing birth certificates, car titles, silver, gold, coins, and his grandfather’s
gold watches were torn from the wall where they had been bolted to the sheetrock, and
they had been removed from the premises. He said insurance paid him $10,000 for the loss
of his property and another $4,000 for the loss of his guns, but he estimated his total loss
was around $35,000, and insurance did not cover the silver, gold, or his tools. He said some
of the items taken from his shop building included generators, a power washer, and bicycles,
and he believed someone was coming back because his large air compressor had been placed
by the door. Barron testified that the backpack and ratchet found on Cobb when he was
apprehended looked like his property. He explained that there had also been an attempt to
enter his thirty-two-foot camper by prying the door, but it was locked; he estimated it
would cost at least $500 to replace the door, so he had simply attempted to hammer the
frame back to its original shape.
When the State rested its case, Cobb moved for a directed verdict on all counts,
arguing there was no evidence he was the person who entered Barron’s property and
committed the offenses. He contended that he had found the items in his possession when
he was apprehended (the backpack and the rachet) on the easement, and it was not a crime
to pick up misplaced or abandoned property. This motion was denied. Cobb presented no
witnesses. He renewed his motion for directed verdict, which was again denied. The jury
returned guilty verdicts on all counts.
4 II. Standard of Review
A directed-verdict motion is a challenge to the sufficiency of the evidence. Sanford
v. State, 2019 Ark. App. 10, 567 S.W.3d 553. Our test for determining the sufficiency of
the evidence is whether the verdict is supported by substantial evidence, direct or
circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion
one way or the other beyond suspicion and conjecture. Hamrick v. State, 2019 Ark. App.
298, 577 S.W.3d 734.
The law makes no distinction between circumstantial and direct evidence when
reviewing for sufficiency of the evidence. Sanford, supra. The jury is permitted to draw any
reasonable inference from circumstantial evidence to the same extent that it can from direct
evidence. Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985). Guilt can be
established without eyewitness testimony, and evidence of guilt is not less because it is
circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Circumstantial
evidence may constitute substantial evidence to support a conviction if it excludes every
other reasonable hypothesis other than the guilt of the accused. Hamrick, supra. Whether
circumstantial evidence excludes every other reasonable hypothesis consistent with
innocence is a determination for the fact-finder; on review, the appellate court must
determine whether the fact-finder had to resort to speculation and conjecture to reach its
decision. Sanford, supra. On appeal, the evidence is viewed in the light most favorable to
the verdict, and only evidence supporting the verdict is considered. Hamrick, supra. The
appellate court does not weigh the evidence presented in the circuit court as that is a matter
for the fact-finder, nor does it assess the credibility of the witnesses. Hamrick, supra.
5 III. Discussion
Cobb was convicted of seven offenses: residential burglary, attempted breaking or
entering, criminal mischief in the first degree, theft of a firearm, theft of property, and two
counts of breaking or entering. A person commits residential burglary if he or she “enters
or remains unlawfully in a residential occupiable structure of another person with the
purpose of committing in the residential occupiable structure any offense punishable by
imprisonment.” Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). A person commits theft
of property if he or she 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 of the property.” Ark. Code Ann. § 5-36-103(a)(1) (Repl. 2013).
Theft of property is a Class D felony if the “value of the property is five thousand dollars
($5,000) or less but more than one thousand dollars ($1,000)” or if the property is “a firearm
valued at less than two thousand five hundred dollars ($2,500).” Ark. Code Ann. § 5-36-
103(b)(3)(A) & (B) (Repl. 2013).
A person commits breaking or entering if “for the purpose of committing a theft or
felony he or she breaks or enters into any building, structure, or vehicle.” Ark. Code Ann.
§ 5-39-202(a)(1). It constitutes a separate offense for the breaking or entering into of each
separate building, structure, or vehicle. Ark. Code Ann. § 5-39-202(b)(1). A person
attempts to commit an offense if he or she “purposely engages in conduct that constitutes a
substantial step in a course of conduct intended to culminate in the commission of the
offense whether or not the attendant circumstances are as the person believes them to be.”
Ark. Code Ann. § 5-3-201(a)(2). A person commits criminal mischief in the first degree if
6 he or she “purposely and without legal justification destroys or causes damage to any
property of another.” Ark. Code Ann. § 5-38-203(a)(1). This offense is a Class D felony
if the amount of actual damage is more than $1,000 but less than $5,000. Ark. Code Ann.
§ 5-38-203(b)(2).
Cobb’s overarching sufficiency argument for all seven offenses turns on the fact that
the evidence in this case is entirely circumstantial. He argues the State failed to produce any
direct evidence of his involvement in the crimes and further left the jury to rely on
speculation and conjecture to convict him.
Cobb is correct that all the evidence in this case is circumstantial. However,
circumstantial evidence may constitute substantial evidence to support a conviction if it
excludes every other reasonable hypothesis other than the guilt of the accused. Hamrick,
supra. This court must now determine whether the fact-finder resorted to speculation and
conjecture to reach its decision. We hold it did not.
Cobb argues that the State “woefully failed to develop the case and investigate
reasonable alternative theories.” He further contends that none of the State’s witnesses
could state with certainty that he was the person who had committed these offenses on
Barron’s property. Although it is essential to every case that the defendant be shown as the
one who committed the crime, that connection can be inferred from all the facts and
circumstances of the case. Davis v. State, 2011 Ark. App. 561.
In this case, the State presented sufficient circumstantial evidence from which the
jury could reasonably infer that Cobb was the person who had committed these offenses.
Cobb and Contreras entered Barron’s property, which contained thirty lots, bypassing a
7 locked gate. They began walking “suspiciously” as they approached Barron’s house and
then split up, with Cobb going to the front of the residence and Contreras to the rear of
the residence. When confronted by law-enforcement officers, Cobb began to run away but
was apprehended. Fleeing from the scene of the crime is relevant to the issue of guilt.
Goforth v. State, 2010 Ark. App. 735. When questioned why he was on the property, Cobb
stated it was a shortcut to Allen’s Grocery; however, one of the officers testified the store
was in the opposite direction, and there was no reason for the two men to be on the
property. Improbable explanations of incriminating conduct can be considered to infer
evidence of guilt. Id. It was apparent Cobb was unaware the officers were on the property,
as he asked one officer “what the f***” was he doing there and how did he get there.
When apprehended, Cobb had a backpack and a ratchet in his hand, both of which Barron
testified looked like his property. Furthermore, a game camera captured photos of a man
with a laundry basket of items; while the man’s face was not visible, law-enforcement
testimony indicated that the hat and the shoes the man was wearing resembled the ones
worn by Cobb when he was apprehended. Given the entirety of this circumstantial
evidence, the jury could conclude without resorting to speculation or conjecture that Cobb
had committed the offenses.
Affirmed.
VIRDEN and VAUGHT, JJ., agree.
Potts Law Office, by: Gary W. Potts, for appellant.
Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.