Wrather v. State

Lawson Cloninger, Judge. In this appeal from a conviction for Theft of Property, a felony, the sole issue is whether the evidence is sufficient to support a conviction. The defendant-appellant, Raymond L. Wrather, was found guilty by the trial court, sitting without a jury, and sentenced to the Arkansas Department of Correction for a term of five years. We find there is substantial evidence to support the finding of the trial court, and we affirm. Appellant was charged with Theft of Property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977), which provides: (1) A person commits theft of property if he: (a) knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of interest in, the property of another person, with the purpose of depriving the true owner thereof... Viewing the testimony in the light most favorable to the state, as we must do, the evidence indicates that on September 5, 1978, appellant leased furniture valued at $1,120.-00 from Arkansas Furniture Rental, Inc., for a period of six months, at a monthly rental of $62.50. The furniture was not to be removed from the address given by appellant without the written permission of the lessor. The last payment by appellant was for the month of January, 1979, and in February, 1979, appellant moved, taking the furniture with him. When no further payments were made, the lessor called appellant’s brother and place of employment in an effort to locate appellant, but was unsuccessful. When appellant failed to return the lessor’s calls, a warrant was obtained for appellant’s arrest in June of 1979- The lessor did not know where his furniture was, and he was not contacted by appellant or anyone on his behalf until after the warrant of arrest was issued. An important aspect of this case is the credibility of the witnesses, and the trial judge had the right to accept such portions of testimony as he believed to be true and reject those he believed to be false. Core v. State, 265 Ark. 409, 578 S.W. 2d 581 (1979)- The trial court may well have believed that appellant in the instant case made no effort to contact the lessor of the property, or that he made no effort to return the furniture. The element of intent was established by circumstantial evidence at the trial, but the fact that evidence is circumstantial does not render it insubstantial. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). The Court in Chaviers v. State, 267 Ark. 6, 588 S.W. 2d 434 (1979) upheld a theft of property conviction which involved consideration of the clauses “exercises unauthorized control” and “purpose of depriving the owner thereof.” In commenting on the element of intent, the Court stated: By the nature of things, one’s intent or purposes being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by direct evidence, but may be inferred from the facts and circumstances shown in evidence. In this case, there was substantial evidence from which the trial court could infer the intent to deprive the owner of its property. Appellant urges on this appeal that the appropriate statute for the offense alleged is Ark. Stat. Ann. § 41-2209 (Repl. 1977), which deals specifically with the theft of leased personal property. The point must be rejected, because there was no objection in the trial court to support it. Appellant may have deliberately chosen not to object in the trial court, but in any event, he cannot raise it for the first time on this appeal. Wicks v. State, 270 Ark. 781, 606 S.W. 2d 366 (1980). Affirmed. Glaze and Corbin, JJ., concur.