ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CA00-1211

June 6, 2001

RONNIE DUBOSE AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CV99-9898]

V. HON. DAVID BOGARD, JUDGE

CITY OF SHERWOOD

POLICE DEPARTMENT

APPELLEE AFFIRMED

This case arises from an appeal taken by Ronnie Dubose from the Sherwood Civil Service Commission (Commission) to the Pulaski County Circuit Court. The circuit court affirmed the Commission's order upholding appellant's termination by appellee, the Sherwood Police Department. Appellant argues that the circuit court erred in upholding his termination and in refusing to hear additional evidence regarding a subsequent disciplinary action against another city employee who had stolen property. We find no error and affirm.

Appellant was employed by the Sherwood Police Department for nearly ten years. In 1998, he was arrested and charged with misdemeanor theft of property, pursuant to Arkansas Code Annotated 5-36-103 (Repl. 1997), after police found a missing boat propeller in a Wal-Mart bag containing a credit card receipt bearing his name. Appellee subsequently fired him, alleging that based on the criminal charges being brought against him, he had violated Sherwood Police Departmental Rule 4-06.01. This rule provides that all Sherwoodcity employees shall obey all federal, state, and local laws, and that a conviction of the violation of any law, other than a minor misdemeanor violation, shall be prima facie evidence of a violation of the rule.

Chief James Crockett stated in appellant's notice of termination that appellant violated Rule 4-06.01 when he "did in fact or attempted to knowingly take or exercise unauthorized control over property which belonged to Mr. Dan Caldwell and was in the possession of Mr. Mike Poye, owner of Poor Boys Outboard Service . . . as charged under Arkansas Statute 5-36-103 . . . ."

Appellant was charged with stealing a propeller from a boat that was being repaired at Poor Boys Outdoor Service. The City of Sherwood Civil Service Commission entered an order dated June 23, 1998, finding that his employment was terminated due to his violation of Rule 4-06.01 and that he violated this rule when he took or knowingly attempted to take or to exercise unauthorized control over a propeller belonging to someone else, in violation of section 5-36-103.1 The parties had agreed to hold in abeyance his civil service appeal pending the outcome of the criminal case. Appellant was convicted of the criminal charge in Pulaski County Municipal Court, but was acquitted of the charge in circuit court. Appellant then appealed the order of the Commission to the Pulaski County Circuit Court.

During his civil appeal, appellant attempted to introduce evidence regarding another Sheriff's department employee who had also violated Rule 4.06.01 by violating a state law, but who was merely suspended. Appellant argued that it was proper for the circuit court to consider the punishment meted out to other employees to determine whether Chief Crockett's decision was motivated by personal animus. The circuit judge refused to allow appellant to introduce this evidence, ruling that it was not relevant. The circuit court upheld appellant's termination, and this appeal followed.

I. Error in Upholding Appellant's Termination

In reviewing an appeal from a Civil Service Commission, the circuit court conducts a de novo hearing on the record before the Commission and may consider any additional competent testimony that the court determines is relevant. Ark. Code Ann. § 14-51-308(e)(1)(C) (Repl. 1998); See Daly v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 260 (1991). The circuit court's findings are based on a preponderance of the evidence standard. See Dalton v.City of Russelleville, 290 Ark. 603, 720 S.W.2d 918 (1986). Therefore, our review is limited to whether the circuit court's findings were clearly against the preponderance of the evidence or whether its decision was clearly erroneous. See City of Little Rock v. Young, 34 Ark. App. 135, 806 S.W.2d 38 (1991).

We consider appellant's second point on appeal first, as it concerns the sufficiency of the evidence supporting his termination. Appellant was charged with the misdemeanor theft of property for stealing a boat propeller, pursuant to section 5-36-103. Based on appellant's criminal charge, he was terminated for violating the city's departmental Rule 4-06.01. In the civil appeal the circuit court recognized that appellant was acquitted of thecriminal charge, but found that the preponderance of the evidence established that he was involved in the misdemeanor theft of property, and therefore, that appellee properly terminated him for violating Rule 4.06-01.

Appellant maintains that since he was acquitted of the sole criminal charge upon which his termination was based, "there can be no violation as charged in the letter of termination." Citing Magness v. Shock, 262 Ark. 148, 554 S.W.2d 342 (1977), he argues that he can only be terminated pursuant to the charge of which he had notice and which was named in the termination document. He maintains that his termination could not be based on the charge in the termination document because he was acquitted of that charge. In essence, he argues that since the evidence did not support a finding beyond a reasonable doubt that he committed theft of property, the evidence cannot also support a finding by a preponderance of the evidence that he committed theft of property. He further argues that the circuit court's finding is not supported by a preponderance of the evidence.

The evidence showed that appellant had taken his boat to Poor Boys Outboard Service for repairs, and was dissatisfied that it was taking Mr. Poye, the owner, so long to complete the repairs. He testified that when he arrived at the boat shop on March 3, 1998, he saw a white male standing inside the fence of the boat yard, and that as soon as he arrived, the man exited through the gate and left in a truck. He said that he could not see his boat inside the shop, so he began browsing on the property and looking at propellers on different boats.

Appellant is physically disabled and is required to walk with crutches. He admitted that he often keeps Wal-Mart bags on his person and in his vehicle to assist him in carrying things. He stated that he found a Wal-Mart bag containing the propeller as he was browsingon the property. He then walked to another boat on the lot (Mr. Caldwell's boat, the same boat that was subsequently found to be missing the propeller), to lean on the boat for support so he could examine the propeller. Appellant stated that he was looking for a seventeen to twenty-one-inch propeller and said that when he determined the propeller in the bag was too small, he returned the bag to the spot where he found it before Mr. Poye arrived. He stated to the investigating officer that he did not intend to steal the propeller, but only intended to look at it. Appellant could not explain why the bag containing the propeller also contained a credit card receipt with his signature on it, but he said that he sometimes brought Poye parts to put on his boat in plastic bags.

Mike Poye, the owner of the boat shop, testified when he came back from lunch, he saw appellant coming across the boat yard with a blue Wal-Mart bag in his hand. He stated that he witnessed appellant throw the bag underneath a boat. Poye admitted that appellant told him about seeing another man on the property. After appellant left, Poye found the bag under the boat, and saw that a propeller was in the bag. Poye testified appellant had told him on previous occasions that he wanted a new propeller, so Poye assumed that appellant brought the propeller to him to place on his boat. Poye installed the propeller on appellant's boat. The next morning, Poye noticed that Mr. Caldwell's boat was missing its propeller. The propeller on Mr. Caldwell's boat had only been attached to its motor by hand-tightening, because Poye was waiting on some other parts for the propeller that had been ordered. Poye testified that the propeller could have been easily removed by hand. The missing propeller had been damaged in an accident on a prior occasion and therefore, had identifying scratches on it. Poye realized that the propeller in the bag was the one missing from Mr. Caldwell'sboat. He called the police, who discovered a credit card receipt signed by appellant, dated March 1997, in the bag where Poye found the propeller. Poye denied that appellant had ever brought him parts for his boat contained in plastic bags.

The circuit court found that although appellant's and Poye's testimony conflicted in some respects, their testimony nonetheless supported a finding that appellant had possession of a propeller belonging to someone else. The circuit judge also found that the evidence clearly supported that appellant intended to deprive the owner of the boat of the propeller, at least for the time that he was in possession of it, and perhaps longer, since he did not return the propeller to the boat.

Arkansas Code Annotated section 5-36-101 defines theft of property as "knowingly taking or exercising unauthorized control over the property of another with the purpose of depriving the owner thereof." Under Arkansas Code Annotated section 5-36-101(4), a person deprives someone of his property if he withholds property or causes property to be withheld either permanently or under the circumstances such that a major portion of its economic value, use, or benefit is appropriated to the defendant, or lost to the owner. Appellant maintains the greater weight of the evidence does not show that he intended to deprive the owner of the propeller within the meaning of the statute, especially when his acquittal is taken into consideration.

We hold that the circuit court's finding that appellant committed theft of property by a preponderance of the evidence was not clearly erroneous. The evidence in this case was conflicting. Since a determination of the preponderance of the evidence turns on questions of credibility and weight to be given testimony, we defer to the circuit court's superiorposition to make those determinations. See Morgan v. State, 72 Ark. App. 482, 37 S.W.3d 684 (2001).

Finally, appellant's argument that because he was acquitted of the criminal charge he could not be terminated based on the allegations in the termination petition is without merit. Whether he violated Rule 4-06.01 did not turn on whether or not he was also convicted under the criminal statute. It is the conduct supporting the criminal charge that also violated Rule 4-06.01. As in revocation of probation cases, conduct that is not sufficient to support a criminal charge beyond a reasonable doubt may be sufficiently proved by a preponderance of the evidence. Lemons v. State, 310 Ark. 381, 836 S.W.2d 500 (1981). Simply because the State failed to prove the theft charge beyond a reasonable doubt does not mean that the circuit court erred in finding that a preponderance of the evidence established that appellant committed theft of property. We hold that the circuit court did not err in upholding appellant's termination.

II. Additional Evidence

We further hold that the circuit court did not err in refusing to admit evidence of an unrelated, subsequent disciplinary action taken against another Sheriff's department employee accused of violating Rule 4-06.01.

Arkansas Code Annotated section 14-51-308(2)(C)(1) (Repl. 1998) provides that the circuit court shall review the Commission's decision on the record and may hear additional testimony or allow further evidence that is relevant and otherwise admissible. Appellant maintains that the circuit court erred in refusing to admit evidence proffered by appellant concerning the subsequent disciplinary action of another employee, Darin Furhman, who hadbeen charged with violating the same rule as appellant. Furhman had allegedly towed a vehicle to his home from private property without the owner's permission and treated the vehicle as his own. This evidence was not presented to the Commission because the incident with Furhman apparently had not occurred prior to the hearing before the Commission. Appellant states that under the Arkansas Civil Service Act and City of Little Rock v. Hall, 249 Ark. 337, 459 S.W.2d 119 (1970), the circuit court has the authority to conclude that termination is not an appropriate punishment, even where it is shown that regulations have been violated.

Appellant argued below that:

the consistency in the level of discipline imposed upon employees is relevant to the question of whether or not the management is motivated by the actual disciplinary event or by the personal animus toward the employee and that would be my purpose in offering that testimony.

However, on appeal, appellant argues that the evidence of Furhman's wrongdoing and suspension was relevant to show the punishment meted out to other individuals, which he maintains is a factor the circuit court should consider in determining whether to modify the appellant's punishment. In other words, he now argues that this evidence tends to support that appellant's termination was wrongful and that punishment other than termination should have been imposed.

The evidence proffered by appellant showed that Furhman had no prior suspensions or disciplinary actions, and was suspended for thirty days, rather than fired. Likewise, appellant had no prior suspensions or disciplinary actions. Therefore, he maintains that this evidence would have shown that his termination for allegedly stealing a propeller waswrongful where Furhman, who actually removed a vehicle and used it as his own, was merely suspended, especially where appellant was acquitted of the criminal charges that constituted the basis for his dismissal.

The relevancy of evidence is within the circuit court's discretion and this court will not reverse a circuit court's ruling on a relevancy determination absent an abuse of that discretion. See Dalton v. City of Russellville, supra. Here, the circuit court refused to allow the evidence regarding Furhman's disciplinary action to be introduced, stating, "It's subsequent to this, it is a totally unrelated affair as I understand it. It has nothing to do with this case other than the facts of saying, `Well, look what they did to this guy' and I just don't think that's relevant." We hold that the circuit court did not abuse its discretion in refusing to hear the additional testimony in this case.

First, it is not clear that appellant raises the same argument to this court that he made below. He argued below that the additional evidence was relevant to show that Chief Crockett acted with personal animus. On appeal, he seems to argue that the evidence was relevant in order to for the circuit court to make a determination regarding whether the punishment imposed was proper. A party is bound by the scope and nature of the arguments raised below, and cannot change arguments on appeal. See Edgin v. Entergy Operations, Inc., 331 Ark. 162, 961 S.W.2d 724 (1998).

Second, while appellant is correct in asserting that the circuit court may modify the punishment imposed by the Commission, see City of Little Rock v. Young, 34 Ark. App. 135, 806 S.W.2d 38 (1998), the circuit court is not required to do so. Nor is the circuit court required to hear additional evidence, but if it does, section 14-51-308(e)(1)(C)(ii) requiresthat the additional evidence must be competent and otherwise admissible. Clearly, it was within the circuit court's discretion to find that Furhman's suspension due to his violation of Rule 4-06.01 was not relevant to determine whether appellant violated the same rule. The issue before the circuit court was what the court thought an appropriate punishment should be on the facts of the instant case before it, not whether appellee's action in terminating appellant was consistent in light of a subsequent, unrelated disciplinary action regarding another employee.

Fully cognizant that it had the authority to modify appellant's punishment, the circuit court found that it did not need to hear evidence concerning Furhman's subsequent disciplinary action, which was based on totally unrelated conduct, in order to make that determination. The circuit court was not required to hear such evidence in order to reach a determination in this case. Therefore, we hold that it did not abuse its discretion in refusing to admit the additional evidence proffered in this case.

Affirmed.

Jennings, J., agrees.

Roaf, J., concurs.

1 Appellant erroneously asserts that the Commission made no findings of fact. Appellant failed to abstract the Commission's order. However, we may go to the record where we affirm. See Schultz Farm Bureau v. Bureau Mutual Ins. Co., 328 Ark. 64, 940 S.W.2d 871 (1997). The record in this case shows that Commission made specific findings of fact in its order dated June 23, 1998, as indicated above.