DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR01-1201

September 18, 2002

CLIFFORD FAIRCHILD AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR01-364]

V. HON. JOHN PLEGGE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury convicted appellant Clifford Fairchild of one count each of residential burglary and theft of property. He was subsequently sentenced to concurrent sentences of three hundred thirty-six months and twelve months of imprisonment for the offenses. For his sole point on appeal, appellant contends that the trial court should have granted his motion for directed verdict regarding residential burglary because the State failed to introduce substantial evidence to demonstrate that he unlawfully entered the home of the victim. We affirm.

Factual and Procedural History

Viewing only that evidence that supports appellant's convictions, the following events occurred. Appellant worked for Dennis Williams performing odd jobs around Williams's home, which was located at 909 Adams in Little Rock. Around 7:45 a.m. on Friday,December 1, 2001, appellant came by Williams's home. On that particular morning, appellant moved some tools from Williams's living room to a back room. These tools included a saber saw, a circular saw, and a cordless screwdriver. Williams watched appellant move the items as he sat in his bedroom. After appellant finished, Williams and appellant left the house, with appellant carrying some trash, which consisted of paper in a box. Appellant placed the box of trash beside Williams's garage.

When asked about the windows in his back room, Williams testified as follows:

I have windows in that room. I got two windows. One window is on the side. This is one window. Then it's got one window in the very back. I have a board in that particular window to - when I moved there, I just closed that window in with a board. Where the windowpane go [sic] there's a board sitting in there.

I keep this shut all the time. It's double locked, it's double locked. I keep all my windows locked. I keep my home locked regularly.

After appellant placed the trash beside the garage, he went to Williams's back yard and began to cut the grass and trees, using a handsaw, a sling blade, and an axe. Williams went to a neighbor's home and talked with the neighbor. Williams then returned to his home. While Williams was in his home, appellant came in and asked Williams if he could use the telephone. As appellant used the telephone, Williams stepped away. Williams observed appellant pick up Williams's pager. After appellant finished his telephone conversation, appellant asked Williams for the number to Williams's pager. At this point, Williams and appellant left the house again, and appellant went to the backyard and continued to work. At some point, Williams heard his neighbor's dogs barking. He ran to the back of his home to investigate and observed appellant running up the hill with two of Williams's saws. Next,Williams went into his home and found that the tools that appellant moved to the back room were gone, as well as Williams's pager, which was sitting beside the telephone. Williams contacted the police. He testified that once the police arrived, the police told him that the window in the backroom was unlocked and partially raised. Williams also noticed that the board on the window was pushed out.

Williams testified that based on the location of the box of trash, he would have seen anyone who approached the trash. Williams testified that he did not see appellant open the window and throw anything out. However, Williams testified that opening the window was the only way that appellant could have come into the back room because he locked the front door each time he and appellant left the residence. Williams testified that he gave appellant permission to enter his home twice and that he was present in the home on both occasions. Officer Marilyn Scott testified that she and a fellow officer investigated a complaint of burglary at Williams's residence. The officer stated that Williams told her that he had hired a worker to cut some tall grass and brush in his back yard, and that when he heard some dogs barking, he went to check on the worker. Scott testified that Williams told her that he saw the worker running up the hill through the woods carrying his tools and that he noticed that a window was opened in the back part of the house. At this point, Williams telephoned the police. Williams showed Scott the open window. As Scott and Williams conversed, appellant arrived and inquired as to what was going on. When Williams identified appellant as the person that Williams witnessed running away with the tools, Scott placed appellant under arrest and informed him of his Miranda rights. Appellant told Scott that he had noknowledge of Williams's tools.

The State rested and counsel for appellant moved for a directed verdict regarding the charge of residential burglary. Counsel argued that the State failed to prove that appellant removed anything from the property or that appellant did not have permission to be there. Counsel also asserted that the State's entire case rested on assumptions. The court denied the motion, and appellant testified in his own defense.

Appellant admitted removing a saber saw, a power saw, a jig saw, and a pager from Williams's home, but denied that he removed the property by an unlawful entry into the residence. Instead, appellant testified that once he arrived that morning, Williams told him that he would not be able to pay all of the money that Williams owed appellant for working. Appellant testified that he took the tools out of the house when he took the trash out, and that he considered the tools as payment for the work he had performed. He admitted that his actions were wrong and testified that he had apologized to Williams.

Following deliberations, the jury found appellant guilty of residential burglary and of theft of property with a value of less than $500. Appellant was subsequently sentenced to twenty-eight years' imprisonment in the Arkansas Department of Correction for residential burglary and one year incarceration in the Pulaski County Regional Detention Facility for theft of property. The one-year sentence was merged into the twenty-eight year term of imprisonment. This appeal followed.

Analysis

We treat motions for a directed verdict as challenges to the sufficiency of the State'sevidence. See Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). On appeal, the issue is whether there is substantial evidence, i.e. evidence that will support a conviction, without a trier of fact being required to resort to mere speculation. See id. Evidence is viewed in the light most favorable to the State, and only evidence that supports a verdict is considered. See id. Circumstantial evidence may constitute substantial evidence; however, when the State relies solely on circumstantial evidence that evidence must point to the guilt of the accused and must exclude all other reasonable hypotheses. See Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). Stated differently, the State must demonstrate that the circumstances are so connected and cogent as to evince guilt to a moral certainty and exclude all other reasonable hypotheses consistent with innocence. See id. Whether circumstantial evidence excludes all other reasonable hypotheses is a question of fact for the jury to determine. See id. When circumstantial evidence leaves the jury to resort to speculation and conjecture, it is insufficient as a matter of law. See id.

In Williams v. State, 222 Ark. 458, 261 S.W.2d 263 (1953), our supreme court discussed the necessity for circumstantial evidence to be substantial and stated as follows:

It is not allowable, under the rules of evidence, to draw upon one inference from another, or to indulge presumption upon presumption to establish a fact. Reasonable inferences may be drawn from positive or circumstantial evidence, but to allow inferences to be drawn from other inferences, or presumptions to be indulged from other presumptions, would carry the deduction into the realm of speculation and conjecture.

. . . Where inferences are relied upon to establish guilt, they must point to guilt so clearly that any other conclusion would be inconsistent therewith. This is true no matter how suspicious circumstances may be.

Id. at 462-63, 261 S.W.2d at 265-66 (citations omitted).

Recently, in Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001), our supreme court cited the rationale espoused in Williams v. State, supra, and reiterated that inferences may not be drawn from other inferences nor presumptions from presumptions.

A person commits the offense of residential burglary when he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. See Ark. Code Ann. § 5-39-201(a)(1) (Repl. 1997). The term residential occupiable structure includes a structure where a person lives. See Ark. Code Ann. § 5-39-101(1)(A) (Repl. 1997). Also, the term "enter or remain unlawfully" is defined as entering or remaining in or upon the premises when a person is not licensed or privileged to do so. See Ark. Code Ann. § 5-39-101(4) (Repl. 1997).

Possession of recently stolen property is prima facie evidence of guilt of theft of the party in whose possession the property is found, unless it is satisfactorily accounted for to the trier of fact. See Stout v. State, 304 Ark. 610, 804 S.W.2d 686 (1991). This is true even if there is no direct evidence of breaking or entering by appellant and when there is no other evidence to show that an appellant committed the crime with felonious intent. See id.

In Brown v. State, 35 Ark. App. 156, 814 S.W.2d 918 (1991), Brown was convicted of burglary and argued that there was insufficient evidence to sustain his conviction. He specifically contended that the evidence failed to prove that he entered the residence from which the property was taken. We disagreed. We began by noting that the possession of recently stolen property provides prima facie evidence of guilt of theft even when there isno direct evidence of breaking or entering. We then observed that Brown was initially seen by the police pushing a shopping cart full of the stolen property at 9:30 a.m., that the residence was burglarized between 7:45 a.m. and 10:45 a.m., and that the shopping cart that Brown was pushing was located within two blocks from the burglarized residence. We determined that Brown's possession of the stolen property, his flight from the police, and the close proximity in time and distance that linked Brown, the stolen property and the residence, provided sufficient evidence to sustain the Brown's burglary conviction.

Viewing the evidence in the present case in a light most favorable to the State, we hold that a rational trier of fact could have concluded beyond a reasonable doubt that appellant unlawfully entered Williams's home and that he did so with intent to commit theft. The State presented Williams's testimony that he observed appellant moving tools from Williams's living room into Williams's back room. Later, after investigating the sound of barking dogs in the backyard, Williams observed appellant running away from the back of Williams's home carrying the same tools. Williams testified that he kept all of his windows and doors locked, and that the particular window in question had a board in place of a glass pane and was double-locked on the night before the incident. Williams further testified that he did not give appellant permission to enter his home alone, that he and appellant left the home together, that he locked the front door, and that after the police arrived, he noticed that the board in the back window was partially pushed out.

Although appellant argues that the only way that the jury could have found him guilty of residential burglary was to first infer that he opened the back window and to then drawupon that inference that he entered Williams's residence through the opened window. We disagree. Credibility issues are left for the trier of fact to resolve. Williams's testimony about the condition of the back window, as well as his testimony that he kept his home locked, provided evidence from which the jury could infer that the home was burglarized. Similar to Brown v. State, supra, appellant was observed fleeing from Williams's residence in possession of the stolen property within minutes of Williams hearing the dogs bark. Although appellant relies heavily on the fact that none of the State's witnesses testified that they saw him enter or leave Williams's home through an open window and that he did not admit to entering Williams home through an open window, appellant ignores established case law that provides that possession of recently stolen property constitutes prima facie evidence of guilt of burglary. Appellant admitted that he took the tools; however, he testified that he did so because of his anger that Williams did not pay him. Again, credibility issues are resolved by the trier of fact. See Brown v. State, supra. The jury was not compelled to believe appellant's version of the events, as appellant was the person most interested in the outcome of the trial. See Brown v. State, supra. The State presented evidence, albeit circumstantial, that properly connected appellant to the offense such that the jury was not left to speculate. Appellant's possession of the stolen tools, his flight away from the scene, his inconsistent statements to the police, and the condition of the window immediately after appellant's flight from Williams's residence provided sufficient evidence to support appellant's burglary conviction. We affirm.

Affirmed.

Jennings and Neal, JJ., agree.