Brasuell v. State , 2015 Ark. App. LEXIS 635 ( 2015 )

Cite as 2015 Ark. App. 559
ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-131
Opinion Delivered October 7, 2015
JEFFERY BRASUELL APPEAL FROM THE CRAWFORD
APPELLANT COUNTY CIRCUIT COURT
[No. 17CR14-336 II]
V.
HONORABLE MICHAEL MEDLOCK,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
LARRY D. VAUGHT, Judge
Appellant Jeffery Brasuell was found guilty by a Crawford County jury of commercial
burglary and theft of property. He was sentenced to the Arkansas Department of Correction for
twenty-five years for the commercial-burglary conviction and to the county jail for one year for
the theft-of-property conviction, to be served concurrently. On appeal, he argues that the
evidence is insufficient to support the commercial-burglary conviction and that the trial court
abused its discretion in introducing evidence in violation of Arkansas Rule of Evidence 404(b).
We affirm.
Brasuell was charged with commercial burglary and theft of property for shoplifting at
a Wal-Mart in Van Buren, Arkansas, on December 5, 2013. Brasuell moved in limine to exclude
evidence of subsequent charges filed against him relating to four shoplifting incidents that
occurred at the same Wal-Mart store in October and November 2014. At the pretrial hearing,
Brasuell argued that evidence of these subsequent four incidents was inadmissible character
Cite as 2015 Ark. App. 559
evidence pursuant to Rule 404(a) of the Arkansas Rules of Evidence and that the evidence was
not admissible for any other purpose outlined under Rule 404(b). He also argued that the
evidence was not admissible because the October and November 2014 incidents occurred after
the December 5, 2013 incident for which he was being prosecuted; they were not similar to the
December 5 act; and there was too much time between the occurrences. The trial court denied
the motion in limine.
At trial, Jonathan Murphy, a Wal-Mart asset-protection employee, testified that he
observed video surveillance from December 5, 2013, showing a man (later identified as Brasuell)
going into the store, buying two items, leaving the store, returning, concealing an air filter in his
pants, and leaving the store without paying for the air filter and a container of oil. Murphy
recorded the license-plate number of the man who had stolen the items and reported the
incident to the police a couple of days later. Using the license-plate information, the police were
led to Brasuell.
Murphy also testified that on October 23, 2010, Brasuell had been banned from all Wal-
Mart stores as evidenced by a document that Brasuell had signed on that date. Murphy said that
Wal-Mart employees are not advised of, and cannot identify, those who have been banned from
the store, and he said that it is possible—as it happened in this case—for someone who has been
banned from the store to enter unlawfully and make purchases without being apprehended.
Joseph Cole, an asset-protection manager at Wal-Mart, testified that on October 10, 12,
25, and November 11, 2014, surveillance video showed Brasuell shoplifting. On the first three
dates, Cole testified that Brasuell was seen at self-check stations bagging items, for which he did
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not scan or pay, and leaving the store with those items. Cole testified that on November 11,
2014, he reviewed surveillance video of Brasuell placing a tool set in his cart and leaving the
Wal-Mart store without paying for it. Another Wal-Mart employee, Nathan Jones, witnessed
Brasuell placing the tool set into his cart and exiting the store without paying for it. Cole testified
that he filed police reports regarding these subsequent incidents.
At the conclusion of the State’s case, Brasuell moved for a directed verdict, arguing that
there was insufficient evidence to support the commercial-burglary charge. Specifically, he
argued that there was no evidence that he had been in the Wal-Mart unlawfully. He contended
that the evidence demonstrated that he had been in and out of the Wal-Mart buying things;
therefore, Wal-Mart had revoked the ban. He also argued that the State failed to prove that he
had the requisite intent to commit a crime when he entered the store. The trial court denied the
motion. After Brasuell rested and renewed his motion, which was denied, the jury returned guilty
verdicts for commercial burglary and theft of property. This appeal followed.
A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence.
Woodson v. State, 2009 Ark. App. 602, at 7, 374 S.W.3d 1, 5. The test for determining the
sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or
circumstantial. Id., 374 S.W.3d at 5. Evidence is substantial if it is of sufficient force and
character to compel reasonable minds to reach a conclusion and pass beyond suspicion and
conjecture. Id., 374 S.W.3d at 5. On appeal, we view the evidence in the light most favorable to
the State, considering only that evidence that supports the verdict. Id., 374 S.W.3d at 5.
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Weighing the evidence and assessing the credibility of the witnesses are matters for the
fact-finder. Id., 374 S.W.3d at 5. The jury is free to believe all or part of any witness’s testimony
and resolves questions of conflicting testimony and inconsistent evidence. Id., 374 S.W.3d at 5.
Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive
province of the jury. Id., 374 S.W.3d at 5.
Brasuell’s first point on appeal is that the trial court erred in denying his motions for
directed verdict, contending that there was insufficient evidence to support the commercial-
burglary conviction.1 Specifically, he argues that there was a lack of substantial evidence that he
had been in Wal-Mart unlawfully.
A person commits commercial burglary if he enters or remains unlawfully in a
commercial occupiable structure of another person with the purpose of committing in the
commercial occupiable structure any offense punishable by imprisonment. Ark. Code Ann. §
5-39-201(b)(1) (Repl. 2013). To “enter or remain unlawfully” means “to enter or remain in or
upon premises when not licensed or privileged to enter or remain in or upon the premises.” Ark.
Code Ann. § 5-39-101(2)(A) (Repl. 2013).
In this case, Brasuell signed a document entitled “Notification of Restriction from
Property,” which provided as follows:
Wal-Mart can prohibit individuals from entering its property who interfere with its
business, shoplift, destroy property, or otherwise behave in a manner that is unacceptable
to Wal-Mart. Wal-Mart has determined you have engaged in conduct sufficient to
necessitate limiting your access to Wal-Mart property. This document constitutes formal
notice and warning that you are no longer allowed on Wal-Mart property or in any area
subject to Wal-Mart’s control. This restriction on entry includes, but is not limited to, all
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Brasuell does not challenge the theft-of-property conviction.
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Wal-Mart retail locations. Should you elect to ignore this notice and enter Wal-Mart
property, Wal-Mart may contact law enforcement and request you be charged with
criminal trespass.
The acknowledgment of receipt, included in the notification, provided “I have read and
understand this notice, or in the alternative, have had it read to me and understand and
acknowledge that as of [October 23, 2010] I am prohibited from entering Wal-Mart property.
I understand this notice will remain in effect until Wal-Mart rescinds it.” Brasuell, along with a
Wal-Mart manager, signed the acknowledgment.
When Brasuell signed the notification, he acknowledged that he no longer had privilege
or license to enter or remain on Wal-Mart property. Therefore, when he entered the Wal-Mart
on December 5, 2013, he did so unlawfully. This is substantial evidence supporting the
commercial-burglary conviction.
Brasuell does not contest that he was aware of the notification restricting him from all
Wal-Mart stores or that he signed it; however, he claims that the notification was rescinded by
Wal-Mart when its employees permitted him to enter the store and buy things despite the ban.
We disagree. There is no evidence on this record that Wal-Mart rescinded the ban on Brasuell.
And simply because Brasuell was able to enter the store and buy things is not evidence that Wal-
Mart rescinded the ban. Murphy testified that Wal-Mart cannot track every person who has been
banned from Wal-Mart. He said that Wal-Mart does not train its employees to look out for those
banned from the store. However, he added that Wal-Mart can—and did in this case—file
charges against those who have been banned from the store by reviewing surveillance video and
credit- and debit-card information. Because there is no evidence that Wal-Mart expressly or
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impliedly rescinded the notification banning Brasuell from its property, we hold that there was
substantial evidence to demonstrate that Brasuell entered or remained unlawfully on Wal-Mart
property and affirm the commercial-burglary conviction.
Brasuell next argues that the trial court abused its discretion in allowing, under Rule
404(b), evidence of the October and November 2014 shoplifting incidents. He contends that
the incidents were subsequent to the December 5, 2013 incident; therefore, they could not be
relevant to the issue of preparation, plan, motive, or knowledge of that incident. He also argues
that the error was prejudicial because most of the evidence at trial revolved around the Rule
404(b) evidence.
Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show that he acted in conformity therewith; however,
it may be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Ark. R. Evid. 404(b)
(2015). Rule 404(b) evidence is admissible if it has independent relevance. Smith v. State, 351 Ark.
468, 473, 95 S.W.3d 801, 804 (2003). Our supreme court has held that evidence is indisputably
relevant if it proves a material point and is not introduced solely to prove that the defendant is
a bad person. Wells v. State, 2012 Ark. App. 596, at 13, 424 S.W.3d 378, 387. Rule 404(b)
evidence of other crimes must be similar to the charged crime; the degree of similarity between
the circumstances of prior crimes and the present crime required for admission of evidence
under Rule 404(b) is a determination that affords considerable leeway to the trial judge and may
vary with the purpose for which the evidence is admitted. Sasser v. State, 321 Ark. 438, 447, 902
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S.W.2d 773, 778–79 (1995) (citations omitted). Finally, our supreme court has repeatedly ruled
that trial courts have broad discretion in deciding evidentiary issues, including the admissibility
of evidence under Rule 404(b), and that those decisions will not be reversed absent an abuse of
discretion. Id. at 447–48, 902 S.W.2d at 779.
Brasuell failed to show that the trial court abused its discretion in admitting the Rule
404(b) evidence because the evidence was independently relevant. This evidence, which occurred
after the crime for which he had been convicted, demonstrated Brasuell’s intent, motive,
opportunity, knowledge, and plan to shoplift from Wal-Mart. The evidence shows that he went
to Wal-Mart to shoplift and that he knew it was illegal because he had been arrested and charged
for the same conduct in December 2013. Also, the similarity between the Rule 404(b) evidence
and the December 5, 2013 incident establishes the independently relevant matters of opportunity
and plan. In both sets of circumstances, Brasuell entered the same Wal-Mart store, selected
items, concealed them either in his pants, his cart, or his bags, did not pay for them, and left the
store.
Brasuell argues that the Rule 404(b) evidence is inadmissible because it occurred after the
December 5, 2013 incident; however, we have recognized that Rule 404(b) applies to evidence
of subsequent bad acts by an appellant. Wells, 2012 Ark. App. 596, at 14, 424 S.W.3d at 388.
Also, we note that on two occasions the trial court gave the jury cautionary instructions
regarding the proper application of the Rule 404(b) evidence. On one of these occasions, the
trial court stated,
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Members of the jury, you are instructed that evidence of other crimes, wrongs,
or acts of Jeffery Brasuell may not be considered by you to prove the character of Jeffery
Brasuell in order to show that he acted in conformity therewith. This evidence is not to
be considered to establish a particular trait or character that he may have, nor is it to be
considered to show that he acted similarly or accordingly on the day of the incident. This
evidence is merely offered as evidence of motive, opportunity, intent, preparation, plan,
knowledge, and identity, or absence of mistake or accident.
And finally, to the extent that Brasuell raises a Rule 403 argument—that the probative value of
the Rule 404(b) evidence was substantially outweighed by prejudice—that argument was not
raised below or ruled on by the trial court; therefore, it is not preserved for review. Hill v. State,
325 Ark. 419, 425, 931 S.W.2d 64, 67 (1996) (holding that Rule 403 issues neither raised nor
ruled upon at trial cannot be raised for the first time on appeal). For these reasons, we cannot
say that the trial court abused its discretion in admitting evidence of the subsequent shoplifting
events pursuant to Rule 404(b).
Affirmed.
VIRDEN and GLOVER, JJ., agree.
Lisa-Marie Norris, for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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