Avett v. State

BRADLEY D. Jesson, Chief Justice. The appellant was convicted of two counts of theft by receiving. Ark. Code Ann. § 5-36-106 (Repl. 1993). He was sentenced to ten years on each count, to run concurrently. On appeal, he challenges the sufficiency of the evidence to support his convictions. We agree that the evidence was insufficient and therefore reverse and dismiss. The facts are as follows. On December 9, 1994, a 1993 Chevy Astro van owned by Debbie Strickland was stolen from her office parking lot in southwest Little Rock. On December 10, 1994, various children’s toys and items of clothing were stolen from the Salvation Army warehouse in southwest Litde Rock. One week later, Litde Rock Police officer Charles Weaver was patrolling an area near 29th and Arch Streets when he noticed a van leaving what he described as a “known crack house.” He ran the van’s license plate on a mobile data terminal. While he was doing this, the van turned into a driveway at 2711 Arch Street. Officer Weaver continued driving while waiting on a report from the terminal. Within a few minutes, the report came back that the van was stolen. Weaver verified the information by radio and asked for the assistance of another unit. He returned to the place he had last seen the van. It was pulling out of the driveway at 2711 Arch. Weaver stopped the van and told the occupants to get out. Both the driver and the passenger complied. Weaver then ordered both men to get on the ground. The driver, Tonda Baker, did so. The passenger, appellant Eric Avett, was not cooperative. He cursed the officer and the police department in general, refused to get on the ground, and yelled for his mother (there is some evidence that Avett lived in the house at 2711 Arch). According to Weaver, Avett smelled of alcohol and had a crack pipe in his pocket. As officers began to take him into custody, he became, according to Weaver, “extremely violent... kicking at officers, yelling for his mother.” Finally, Avett was sprayed with a half-second burst of pepper spray. This enabled the officers to get him into a patrol car. Once inside the patrol car, Avett continued his verbal abuse. An inventory search of the van revealed boxes of toys and items of children’s clothing, mosdy in the rear of the van. The van itself was in poor shape. Debbie Strickland was called to identify her vehicle. She noted that the steering column was badly broken and had numerous wires hanging from it, that different tires and rims had been installed, that the speakers had been stripped from the van, and that some of the seats had been taken out. • This evidence, along with some evidence of the value of the stolen items, constituted the State’s case against the appellant. The case was tried to the court. At the close of the State’s evidence, the appellant moved for a directed verdict. The trial judge denied the motion. The appellant then took the stand. He stated that he had only been in the van for three to four minutes when it was stopped by the police. He denied having any knowledge that the van or its contents were stolen. On cross-examination, he admitted that in 1988, he was convicted of breaking or entering, theft of property, and possession of a controlled substance without a prescription (the appellant had been charged as a habitual offender, having been convicted of more than one but less than four felonies). The court found the appellant guilty on both counts, reasoning that he should have known the van was stolen, given its condition. This appeal followed. A person commits theft by receiving if he: receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 1993). “Receiving” means acquiring possession, control, or title or lending on the security of the property. Ark. Code Ann. § 5-36-106(b) (Repl. 1993). The evidence in this case consists of the fact that the appellant was a passenger in the van for a few minutes (the appellant’s testimony is the only evidence of how long he was in the van; the State offered no other proof on this), that the inside of the van was in poor shape; and that the appellant became violent and belligerent upon being confronted by the police. The appellant argues that being a passenger in a stolen vehicle is not, standing alone, enough to establish constructive possession of the vehicle. We agree, and so held in Riddle v. State, 303 Ark. 42, 791 S.W.2d 708 (1990). However, the State notes that, in Riddle, we nevertheless upheld a conviction for theft by receiving based on other corroborative evidence of guilt. Riddle was a passenger in a stolen vehicle. When an officer recognized the vehicle and turned on his blue lights, the vehicle fled at a high rate of speed. After a chase, the vehicle crashed into a stop sign. The occupants, including Riddle, fled from the scene. As Riddle was being chased on foot, he turned and fired a pistol at the officer in pursuit. We said that Riddle’s occupancy of the vehicle, coupled with his flight from the police and his violent attempt to avoid capture constituted sufficient evidence of theft by receiving. The appellant’s angry, violent behavior in this case is a far cry from being part of a high speed chase, running from the scene and firing a pistol at an officer in pursuit. There is no aspect of flight to avoid arrest which was critical to our holding in Riddle. The State simply did not meet its burden of proof in this case. The appellant’s brief presence in a stolen van which was in poor condition and his violent outbursts upon being taken into custody cannot support a conviction for receiving, retaining or disposing of stolen property, knowing or having good reason to know it was stolen. The dissent attempts to buttress the State’s case by pointing to the fact that, six and a half years before this incident took place, the appellant was convicted of breaking or entering and theft of property. The State does not argue this on appeal, nor did the prosecution make this a part of its case below. The appellant’s prior convictions were introduced by the State without objection apparently for impeachment purposes during cross-examination of the appellant. The trial judge did not refer to this evidence in determining the appellant’s guilt. The dissent cites Rudd v. State, 308 Ark. 341, 825 S.W.2d 565 (1992), for the proposition that the appellant’s prior convictions were evidence of his commission of the offense in this case. Rudd was a residential burglary case. To obtain a conviction, the State was required to prove the purpose for which the accused entered an occupiable structure. Ark. Code Ann. § 5-39-201 (a)(1) (Repl. 1993). We said that Rudd’s former burglary and theft convictions were admissible to show the purpose for which Rudd had entered the residence. We are reluctant to consider the appellant’s former convictions as substantive evidence in this case. First, the convictions could not be considered evidence of the appellant’s purpose in getting into the vehicle because purpose is not an element of the offense of theft by receiving. Second, there is an element of unfairness in bolstering the State’s case with questionable evidence which neither the State nor the judge appeared to rely on at trial, which the State has not argued on appeal, and which the appellant has not had the opportunity to object to, either at the trial level or on appeal. Based upon the foregoing, we hold that the evidence was insufficient to support the appellant’s convictions for theft by receiving. The appellant also raises an issue regarding proof of the value of the items stolen. Since we reverse and dismiss on other grounds, we do not address that issue. Likewise, the State raises an issue regarding our holding in Strickland v. State, 322 Ark. 312, 909 S.W.2d 318 (1995). In that case, we held that a defendant in a nonjury trial need not make a directed verdict motion to preserve sufficiency of the evidence questions on appeal. The State asks us to overrule that case and cites the imprecise nature of the appellant’s directed verdict motion with regard to proof of value. Since we do not reach the proof of value issue, it is unnecessary for us to address the State’s argument. Reversed and dismissed. Glaze, Corbin, and Brown, JJ., dissent.