NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

FRANKLIN WELCH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1279

SEPTEMBER 18, 2002

APPEAL FROM THE SALINE COUNTY CIRCUIT COURT

[CR00-184-3]

HONORABLE GRISHAM W. PHILLIPS JR. CIRCUIT JUDGE

AFFIRMED

Appellant was charged by information with theft of property, a Class B felony, which was subsequently amended to charge him as an habitual offender. Appellant was convicted by a jury of theft of property, a Class C felony, and sentenced as an habitual offender to serve fifteen years' imprisonment in the Arkansas Department of Correction, and assessed a $5,000 fine and $20,000 in restitution. Appellant asserts two points on appeal. First, he argues that the trial court erred in denying his motion for a directed verdict. Second, he argues that the court erred by not only ordering restitution to the victim, but in ordering restitution in an amount that exceeded the statutory limit for Class C felony. We find no error and affirm.

Appellant worked for his father-in-law, Archie Dugan, in a business called Printer Tech Plus (PTP). The company recycled and refilled ink cartridges. In February or March 1999, appellant suggested that the business begin accepting Entergy payments through American Payment Systems (APS). Mr. Dugan was approved by APS to accept Entergy payments from customers, and a

machine that accepted payments and transmitted information to APS was installed at PTP.

The machine scanned the bar code on a customer's Entergy bill, and the operator indicated the amount and method of the customer's payment. A daily record of the transactions and totals was sent to APS by modem. PTP was required to deposit the cash and check payments it received in an account at Malvern National Bank by 1:00 p.m. the following day. In May, 1999, Mr. Dugan returned to truck driving and turned the daily operations of PTP over to appellant.

Appellant's duties included making the daily deposits at the Malvern National Bank. Records showed that during November and December 1999, PTP accepted payments of $76,925.20 for APS; but only $54,100.23 was deposited into the APS account. This left an unaccounted-for balance of $22,824.97. To verify the discrepancy, the State introduced receipts for Entergy payments that PTP accepted and APS deposit records.

APS threatened to sue Mr. Dugan for the deficiency, so Mr. Dugan paid them the full amount of the unaccounted-for balance. At trial, Mr. Dugan testified that appellant had told him that he had requested APS remove the payment machine in November 1999 because it was no longer "worth it" to accept the Entergy payments. Appellant's wife worked at PTP from May until December 1999. She testified that appellant was in charge of making the daily deposits. She also said that when she learned that some APS money was missing from the deposits, she confronted him about it. He told her that they should not tell her father about the missing money because it was just a clerical mistake. Appellant and his wife divorced prior to the trial.

Appellant testified that the missing money was a computer problem and denied taking the money. He admitted sending a cashier's check in the amount of $1,500 on December 8, 1999, in an attempt to settle the matter of the missing money. There was also testimony that two of appellant's brothers made a few of the deposits for appellant during that time frame, but each deniedtaking any money.

This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001); Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. see also, Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which 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. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).

Appellant insists that a directed verdict should have been granted in this case because there is absolutely no evidence from which the jury could have found him guilty of theft of property without resorting to suspicion and conjecture. We disagree.

"A person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1997). Deprive means "[t]o withhold property or cause it to be withheld either permanently or under circumstances such that a major portion of its economic value, use or benefit is appropriated to the actor or lost to the owner; or, [t]o withhold property or use it or transfer any interest in it under circumstances that make its restoration unlikely." Ark. Code Ann. § 5-36-101(4)(A) & (C) (Repl. 1997).

Testimony established that appellant managed the day-to-day business from May 1999 untilJanuary 2000. He was responsible for making the daily deposits from the Entergy payments into the APS account at the bank. The State's evidence showed no daily deposits were made from November 5 through November 22, 1999, and then, deposits totaling $44,4337.07 were made on November 23, 1999. Even with the belated deposits, $22,824.97 remained missing. Appellant, his former father-in-law, former wife, and appellant's two brothers all testified that they did not take the missing funds. Appellant provided the improbable explanation of computer problems to account for the missing money; then, he attempted to "settle the missing money," and instructed his wife to conceal the missing funds from her father.

The appellate court does not weigh the evidence or pass on credibility of witnesses. That is left to the trier of fact, Brown v. State, 35 Ark. App. 156, 814 S.W.2d 918 (1991), who is free to accept some parts of a witness's testimony and reject other parts. White v. State, 39 Ark.App. 52, 837 S.W.2d 479 (1992). It is the duty of the trier of fact to resolve any contradictions, conflicts, and inconsistencies in the testimony. Larue v. State, 34 Ark. App. 131, 806 S.W.2d 35 (1991). Furthermore, the trier of fact is not required to believe the testimony of a criminal defendant, who is probably the person most interested in the outcome of the proceeding. Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985). False and improbable statements made by a defendant in an effort to explain suspicious circumstances may also be used against him as evidence of guilt. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983).

Therefore, the fact finder had sufficient facts from which it could have found appellant guilty of theft of property without resorting to suspicion and conjecture. Consequently, the trial court did not err by denying the appellant's motion for directed verdict.

Neither did the trial court err by ordering appellant to pay restitution in an amount that was in excess of the amount required for conviction of a class C felony. Evidence established that over$20,000 was unaccounted for from deposits and Mr. Dugan testified that he had paid an amount in excess of $20,000 to APS in order to avoid civil litigation. Restitution is intended to make the victim whole. See Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996). A statutory amount for a conviction does not put a ceiling on the amount of restitution that may be awarded. Id. Therefore the trial court did not err by ordering the appellant to pay $20,000 in restitution awarded by the jury when the jury found him guilty of a Class C felony.

Accordingly, we affirm.

Bird and Neal, JJ., agree.