ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

CACR02-1305

DIVISION I

January 14, 2004

KEITH ALLEN WATSON AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR02-581]

V. HON. WILLARD PROCTOR, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

This appeal arose from the criminal conviction of Keith Allen Watson for theft of property. Appellant argues that there was insufficient evidence to support his conviction for theft of property and that the State failed to afford him a speedy trial. We disagree and affirm.

Appellant was a salesman for Family Foods, owned by Charles and Elizabeth Shaw. The salesmen sold frozen food on consignment. The company provided all salesmen with trucks, owned by the company, a freezer in which to store the frozen food, and the food itself. To obtain the food for sale, the salesmen had to "buy" the food from Family Foods. The price for each box of food thus obtained was credited to each salesmen's account with the company. At the end of each day, Family Foods simply expected to be paid in cash for the food, regardless of whether the salesman actually sold the food or used it personally. In addition, each salesman had to pay rent for the company truck, the use of which was free on weekends. They also were responsible for upkeep and fuel expenses on the trucks. The sales staff had to return from their rounds by nine o'clock in the evening each day. Under company policy, any non-compliance with any of these rules gave rise to the threat of criminal charges.

Appellant had worked previously for Family Foods from October 2000, to early December 2000. Due to a disagreement with Charles Shaw, appellant resigned from his position, but eventually accepted another sales position with Family Foods in early January 2001. Family Foods furnished him with a new 2001 truck, upon a rental charge, with a purchase value of $14,900. Charles Shaw had the truck equipped with a camper shell and other additions, making its total value approximately $16,000.

On January 10, 2001, appellant decided to make a sales route notwithstanding winter weather conditions. That morning, he picked up seven boxes of frozen food from Family Foods. Family Foods charged his credit account with those seven boxes. Appellant drove to Batesville, Arkansas. At the end of the day, appellant decided against returning to Family Foods because weather conditions had worsened. Instead, he stayed at a friend's home in Searcy. Apparently still before nine o'clock in the evening, appellant called Charles Shaw and told him where he was and that he would not come back that night. Charles Shaw became angry and threatened appellant.

That same night, appellant decided to quit his position with Family Foods again. The next morning, appellant did not stop in Little Rock, but continued to Hot Springs. Once there, he refueled the truck and parked it on the lot of a hotel. Appellant next went to a friend's house in Hot Springs where he called Family Foods. He testified that he left a voice message for Charles Shaw telling him where the truck was and that he wanted to meet him. Neither of the Shaws returned the phone call. They had available appellant's contact numbers as well as appellant's friend's phone number, on their Caller ID. However, the Shaws denied receiving a voice message from appellant.

The very evening appellant called Charles Shaw to let him know that he was not returning to Family Foods that night, Charles Shaw had his wife, Elizabeth Shaw, contact the Little Rock Police Department, to report the truck and its contents stolen by appellant. Elizabeth Shaw told the police that appellant had stolen a company truck and seven boxes of frozen food, valued at $700. Subsequently, Elizabeth Shaw signed the statement she had given to the police on January 12, 2001. Apparently on March 1, 2001, the State charged appellant with the offense of felony theft of property, based on a total value taken in excess of $2,500. A warrant for appellant's arrest issued on March 2, 2001.

Nonetheless, no arrest was forthcoming until November 26, 2001, when, then in new employment, appellant had an accident on a delivery route. Appellant claims that he was unaware of any arrest warrant or criminal charges until that day. During the accident investigation, the police noticed the outstanding arrest warrant for appellant and took him into custody. Appellant was released on bond and had his first appearance in Little Rock Municipal Court, Criminal Division, on December 10, 2001. That court entered his plea of not guilty and set his case for February 27, 2002, for a preliminary hearing.

The State, however, filed a felony information on February 13, 2002, at the Pulaski County Circuit Court. The circuit court issued a bench warrant on February 15, 2002, charging appellant with theft of property. Again, appellant was arrested and released on bond. He had his first appearance at the circuit court on March 11, 2002, when he pleaded not guilty.

In the meantime, on February 28, 2002, the Shaws accepted appellant's cash payment of $1,000 for settlement of his sales account with Family Foods in satisfaction of all amounts appellant owed them for the food packages, truck rent, and other expenses. The Shaws delivered sworn affidavits and a release, discharge, and indemnity agreement to appellant and the prosecutor's office. The prosecutor, however, refused to drop the case. A jury trial commenced on June 20, 2002. The jury found him guilty and recommended a sentence of two years' probation and a small fine. The circuit court accepted that recommendation and sentenced appellant accordingly. This appeal followed.

Sufficiency of the Evidence

Appellant's first argument concerns the alleged lack of sufficiency of the evidence. A motion for directed verdict, as the one before the trial court in the instant case, is a challenge to the sufficiency of the evidence. Laster v. State, 76 Ark. App. 324, 64 S.W.3d 800 (2002). We test the sufficiency of the evidence by asking whether the verdict is supported by substantial evidence. Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). Evidence is substantial if it is of sufficient force that it would compel a conclusion without speculation or conjecture. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). We review the evidence in the light most favorable to the State and only consider the testimony that tends to support the conviction. Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001). We defer to the fact finder's determination of witness credibility. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000).

Our Code defines the offense of theft of property as follows, in relevant part:

(a) A person commits theft of property if he or she:

(1) 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) (Supp. 2003) (language in relevant part not significantly different from version effective at time of State's felony information for appellant's alleged theft of property). The State must prove each and all elements of the offense with which it charges a criminally accused. Ark. Code Ann. § 5-1-111(a)(1) (Repl. 1997).

Our supreme court has held that a bailment was created when an employer loaned an automobile to his employee for the sole purpose of traveling back and forth from work. Sullivant v. Pennsylvania Fire Ins. Co., 223 Ark. 721, 268 S.W.2d 372 (1954). The supreme court also stated that where such an employee used the bailed vehicle for his own purposes, in violation of the instructions, and damaged the vehicle, he had committed larceny. Id. The now obsolete offense of larceny merged into the offense of theft. Ark. Code Ann. § 5-36-102(a) (Repl. 1997). Thus, we recognize that an unauthorized use of a bailed vehicle constitutes theft under the laws of Arkansas.

In the present case, appellant received a truck from his employer for the express purpose of making sales routes, except in that weekend use was free. The agreement between employer and appellant stated that appellant should report back at Family Foods by nine o'clock in the evening with the truck to settle the daily account. Appellant, instead, chose to leave the truck at a hotel parking lot in Hot Springs. This conduct constituted a deviation from the permissible use of the company truck. As such, leaving the truck, and with its contents somewhere other than in appellant's or Family Foods's control constituted the knowing taking or exercising unauthorized control over Family Foods's property.

In addition, the statute on theft of property requires that the conduct occurs "with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1). However, we defer to the fact finder's assessment of witness credibility. We recognize that appellant appears to argue that he lacked the requisite intent of purposefully depriving the Shaws of their ownership of the truck and the frozen goods. Appellant testified that he called the Shaws to let them know of the location of the truck and the food. Yet, the jury-as the fact finder-was not required to believe appellant's account of events when he stated that he left the truck at the hotel lot and called Family Foods to let them know where the truck was. The jury could instead infer that appellant's unauthorized use of the truck, when he left it on a parking lot in Hot Springs, was done purposely to deprive the Shaws of ownership. We affirm on this point.

Speedy-Trial

Appellant also argues that he was not afforded a speedy trial. Our criminal procedure rules require that the State bring an accused to trial within one year from the date when the charge is filed in circuit court, unless prior to that time the accused was arrested and is in continuous custody or on bail, in which case the accused must be brought to trial within one year from the date of arrest. Ark. R. Crim. P. 28.1(a), 28.2(a) (2003); Marks v. State, 332 Ark. 374, 965 S.W.2d 764 (1998). In computing the speedy-trial period, necessary periods of delay are excluded, as authorized by Ark. R. Crim. P. 28.3. Once we have determined that the trial took place outside the speedy-trial period of twelve months, the State must prove that the delay was the result of the defendant's conduct or was otherwise legally justified. E.g., Brown v. State, 73 Ark. App. 240, 42 S.W.3d 579 (2001).

Here, appellant was arrested on November 26, 2001, pursuant to an arrest warrant from what then was known as the Little Rock Municipal Court. Appellant was free on bail. The criminal information was subsequently refiled at the Pulaski County Circuit Court, on February 13, 2002. According to our rules of speedy-trial, appellant's speedy-trial period commenced on November 26, 2001, because that was the date when he was first arrested and from which date he continuously was either arrested or free on bail. The speedy-trial period did not start when charges were initially brought at the municipal court level, as appellant appears to argue, because our rules on speedy-trial clearly do not contemplate levels below the circuit court. Because appellant's trial took place on June 20, 2002, well within the one-year period for his speedy trial, he received a speedy-trial.

Affirmed.

Neal and Crabtree, JJ., agree.