Bailey v. State

Cite as 2015 Ark. App. 312
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-946
Opinion Delivered May 13, 2015
QUINN LEE BAILEY
APPELLANT APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
FOURTH DIVISION
V. [NO. CR-2013-3620]
HONORABLE HERBERT WRIGHT,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
M. MICHAEL KINARD, Judge
Quinn Lee Bailey appeals from his convictions at a bench trial of residential burglary
and theft of property, for which he was placed on supervised probation for a period of three
years, fined $500, and ordered to pay restitution of $2,124. He contends that the convictions
are not supported by substantial evidence. We affirm.
Appellant was charged together with his girlfriend, Toddera Garlington, with
residential burglary and theft of property in connection with the illegal entry into and theft
of certain items from the Little Rock apartment of one of Garlington’s ex-boyfriends, Dione
Morrison. Dione lived with his brother and sister. He returned home from school in the
early afternoon of April 8, 2013, to discover that someone had broken into his apartment
through a back bedroom window and had stolen a number of items, including a television,
a laptop computer, video game systems, and a number of video games. Dione’s sister and
Cite as 2015 Ark. App. 312
roommate, LaTonya, corroborated much of Dione’s testimony and noted that a laundry
basket had also been stolen. Dione’s brother and other roommate, Gregory, testified that
Garlington had come to the apartment a day or two earlier asking to retrieve some items.
Gregory refused her request and turned her away.
The Morrisons’ next-door neighbor, Othello Johnson, testified that he saw appellant,
a co-worker, at around noon on April 8. Appellant was with a woman at the apartment
complex where Johnson and the victims lived. Appellant was in front of the Morrisons’
apartment, walking toward a white Honda. He was carrying a laundry basket containing a
television and several other items. The woman whom appellant was with told Johnson that
they had come to get her “stuff” from an ex-boyfriend. Johnson further testified that, within
a couple of hours after seeing appellant carrying the basket and television, appellant sent him
a text message inquiring whether the Morrisons had come home yet.
Testifying in his own defense, appellant admitted that Garlington drives a white
Honda. He further admitted that he had gone to the victims’ apartment with Garlington to
retrieve some things and had seen Johnson and spoken to him. Appellant claimed, however,
that these events occurred the day before the burglary and that he and Garlington had left
empty-handed. He denied that he had ever entered the apartment or taken any property.
On appeal, appellant argues that the evidence is insufficient to support his convictions.
Specifically, he contends that no eyewitness placed him, or anyone whom he was with,
inside the apartment. He also argues that, because the stolen property was never recovered,
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there is insufficient evidence to show that any items that he might have been carrying
actually belonged to the victims. We find no reversible error.
First, we are not convinced that appellant preserved these issues for appeal. In order
to preserve the sufficiency of the evidence as an issue for appeal in a criminal case, one must
make a motion for directed verdict or dismissal at trial. In a bench trial, a motion to dismiss
for insufficient evidence shall be made at the close of all evidence and shall state the specific
grounds for dismissal. Ark. R. Crim. P. 33.1(b). If the defendant moved for dismissal at the
close of the State’s case, then the motion must be renewed at the close of all of the evidence.
Id. A defendant’s failure to challenge the sufficiency of the evidence at the time and in the
manner specified in Rule 33.1(b) constitutes a waiver of any question pertaining to the
sufficiency of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c). Rule 33.1
is strictly construed. McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003); Hudson v. State,
2014 Ark. App. 305.
Here, appellant moved for dismissal of the charges at the close of the State’s case-in-
chief. At the close of all of the evidence, however, appellant did not renew that motion.
Instead, he made a closing argument in which he asked the trial court to find him not guilty
on grounds that the State had not proved its case beyond a reasonable doubt. As such,
appellant’s argument was insufficient to preserve the issue of sufficiency of the evidence for
appeal. See Grube v. State, 2010 Ark. 171, 368 S.W.3d 58; Rogers v. State, 2011 Ark. App.
2; Higgins v. State, 2010 Ark. App. 442.
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Even were we to conclude that appellant had preserved the issue, however, we would
still affirm. A person commits residential burglary if he enters or remains unlawfully in a
residential structure of another person with the purpose of committing therein any offense
punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). A person
commits theft of property if he knowingly takes or exercises unauthorized control over the
property of another person with the purpose of depriving the owner of the property. Ark.
Code Ann. § 5-36-103(a)(1) (Repl. 2013). When the sufficiency of the evidence is
challenged on appeal from a criminal conviction, we consider only that proof that supports
the conviction and view that evidence and all reasonable inferences deducible therefrom in
the light most favorable to the State. Davis v. State, 2015 Ark. App. 234. The fact-finder is
free to accept or reject any portion of any witness’s testimony. Holland v. State, 2009 Ark.
App. 398. We will affirm if the finding of guilt is supported by substantial evidence. Davis,
supra. Substantial evidence is evidence of sufficient force and character to compel a
conclusion one way or the other without requiring resort to speculation or conjecture. Hicks
v. State, 2012 Ark. App. 667. Circumstantial evidence may constitute substantial evidence
to support a conviction if the evidence excludes every reasonable hypothesis other than that
of the guilt of the accused. Porter v. State, 2012 Ark. App. 139. The question of whether the
circumstantial evidence excludes every reasonable hypothesis consistent with innocence is
for the fact-finder to decide; on review, we must determine whether the fact-finder had to
resort to speculation and conjecture to reach its decision. Id.
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Here, there was eyewitness testimony that appellant was walking away from the
victims’ apartment carrying items of the same nature that were shortly thereafter discovered
to have been recently stolen from inside the apartment. He was with the ex-girlfriend of one
of the victims, and that woman, in appellant’s presence, admitted to the eyewitness that she
and appellant were there retrieving some items from her ex-boyfriend. Considering this
evidence in light of the close proximity in time to the burglary and theft, we conclude that
appellant’s convictions are supported by substantial evidence.
Affirmed.
GLOVER and HIXSON , JJ., agree.
William R. Simpson, Jr., Public Defender; Brandy Turner, Deputy Public Defender; by:
Margaret Egan, Deputy Public Defender, for appellant.
Leslie Rutledge, Att’y Gen., by: Kristen C. Green, Ass’t Att’y Gen., for appellee.
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