Sullivan v. State

798 S.W.2d 110, 32 Ark. App. 124, 1990 Ark. App. LEXIS 594
CourtCourt of Appeals of Arkansas
DecidedOctober 31, 1990
DocketCA CR 90-1
StatusPublished
Cited by15 cases

This text of 798 S.W.2d 110 (Sullivan v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sullivan v. State, 798 S.W.2d 110, 32 Ark. App. 124, 1990 Ark. App. LEXIS 594 (Ark. Ct. App. 1990).

Opinions

George K. Cracraft, Judge.

Dean Howard Sullivan appeals from his conviction at a non-jury trial of the crimes of burglary and theft of property of a value in excess of $2500.00, for which he was sentenced to concurrent eight-year terms in the Arkansas Department of Correction. He contends that the trial court erred in denying him the right to cross-examine a witness concerning an alleged agreement to testify on behalf of the State; that the evidence was insufficient to sustain a finding that the stolen property was of a value of at least $2500.00; and that the evidence was insufficient to sustain the finding of guilt because he was convicted on the uncorroborated testimony of accomplices. We affirm.

Where the sufficiency of the evidence is challenged on appeal of a criminal conviction, our rule requires a review of that issue prior to consideration of asserted trial error. This rule is based on double jeopardy considerations, which would preclude a second trial where a conviction is reversed for insufficient evidence. In such cases, this court views the evidence, and all permissible inferences to be drawn therefrom, in the light most favorable to the Siate, and will affirm if there is any substantial evidence to support the findings of the factfinder. Harris v. State, 15 Ark. App. 58, 689 S.W.2d 353 (1985). 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 having to resort to speculation or conjecture. Booth v. State, 26 Ark. App. 115, 761 S.W.2d 607 (1989). Hearsay admitted without objection may constitute substantial evidence. Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990); Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). The fact that evidence is circumstantial does not render it insubstantial. Sweat v. State, 25 Ark. App. 60, 752 S.W.2d 49 (1988).

When viewed in this light, the evidence indicates that, on January 27, 1989, the home of Maria Stewart was burglarized. The victim testified that a mink coat, VCR, shirt, and fruit were stolen, and that the total value of these items was $2,600.00 to $2,700.00. She further testified that she had purchased the mink coat in 1979 or the early 1980’s for $2,200.00 and the VCR in 1987 for $279.00. The victim testified that she found the current price on “coats of that type” to be “anywhere from $3,000.00 to $5,000.00.” The victim’s coat was later recovered but it was damaged to such an extent that it could not be repaired or restored. There was no evidence as to the value of the shirt, and the victim testified that the fruit was not worth more than two or three dollars.

Donald Wade testified that, on the night of the burglary, he was going to the Boys’ Club when he saw Bryan McKnight, Kenneth Martin, and appellant coming out from behind the club, which was next to the victim’s home. Wade stated that he saw McKnight and appellant enter the house and that, when they came out, McKnight was carrying a coat and a VCR. He testified that they all then went to Shannon Handley’s house. Shannon Handley testified that that night Donald Wade, Kenneth Martin, Bryan McKnight, appellant’s brother, and appellant came to his house. He stated that McKnight was carrying a fur coat and appellant was carrying a VCR. Handley testified that all of them, including appellant, stated that they had broken into a house. He further testified that appellant left his house carrying the VCR.

Prior to trial, appellant gave the police a statement, in his own handwriting, as follows:

On January 27,1989,1 was with Bryan McKnight when he broke into a house on Stevenson Street. Bryan first went back of the house and returned with a VCR. He then went to another room and got a fur coat and shirt. I don’t know who got the strawberries. When we left the house I carried the VCR over to Shannon’s house and set it down on the table. That was the last time I seen it. Bryan McKnight threw [the] fur coat and shirt outside.

Appellant’s sufficiency argument is two-fold. First, he argues that the evidence is not sufficient to sustain a finding that the stolen property was of a value of at least $2,500.00. We disagree.

Theft of property is a class B felony if the property stolen is worth $2,500.00 or more. Ark. Code Ann. § 5-36-103 (Supp. 1987). Arkansas Code Annotated § 5-36-101(11)(A) (Supp. 1987) defines value as follows: (i) the market value of property or services at the time or place of the offense; or (ii) if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. It is well settled that an owner of property is competent to testify as to the value of his own property. Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989). Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979); Phillips v. Graves, 219 Ark. 806, 245 S.W.2d 394 (1952). In Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), the supreme court recognized that there is a point at which the testimony of the property owner as to value does not constitute substantial evidence of the value of the property at the time of the theft. This case does not present such a situation.

Here, the victim testified, without objection, that the cumulative value of her property was between $2,600.00 and $2,700.00. She stated, without objection, that the value of the VCR was $279.00. She further testified without objection as to what she had paid for the coat, how long she had had it, and the cost of a new coat similar to, though not “exactly” like, the one stolen — all factors that could have been considered by the factfinder in determining the market value of the coat. There was no evidence as to the value of the shirt. From our review of all the evidence before the trial court, we cannot conclude that the finding that the cumulative value of the stolen property was at least $2,500.00 is not supported by substantial evidence. See Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990); Watson v. State, 271 Ark. 661, 609 S.W.2d 673 (Ark. App. 1980). To hold otherwise, this court would have to make a finding that the victim’s testimony as to the cumulative value of her property that was stolen was not credible, and that is not our function.

Second, appellant argues that the evidence was insufficient to find him guilty of burglary and theft of property because such findings were based solely on accomplice testimony. We cannot agree.

We agree with appellant that a conviction for a felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense. Ark. Code Ann. § 16-89-111 (1987).

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Sullivan v. State
798 S.W.2d 110 (Court of Appeals of Arkansas, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
798 S.W.2d 110, 32 Ark. App. 124, 1990 Ark. App. LEXIS 594, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sullivan-v-state-arkctapp-1990.