Robert Cobb v. State of Arkansas

Cite as 2019 Ark. App. 434
Digitally signed by Elizabeth
Perry
ARKANSAS COURT OF APPEALS
Date: 2022.07.28 14:49:23 DIVISION III
-05'00' No. CR-19-202
Adobe Acrobat version:
2022.001.20169
Opinion Delivered: October 2, 2019
ROBERT COBB
APPELLANT APPEAL FROM THE MARION
COUNTY CIRCUIT COURT
V. [NO. 45CR-17-102]

STATE OF ARKANSAS HONORABLE GORDON WEBB,
APPELLEE JUDGE

AFFIRMED

MEREDITH B. SWITZER, Judge

Appellant Robert Cobb was convicted by a Marion County Circuit Court jury of

one count each of residential burglary, attempted breaking or entering, criminal mischief in

the first degree, theft of a firearm, and theft of property, and two counts of breaking or

entering. Cobb was sentenced as a habitual offender. The circuit court ordered that the

convictions for residential burglary, attempted breaking or entering, theft of a firearm, and

theft of property be served consecutively, with the first-degree-criminal-mischief and the

two breaking-or-entering convictions to be served concurrently with the other convictions,

for a total of fifty-five years’ incarceration. On appeal, Cobb argues the circuit court erred

in denying his motions for directed verdict on all seven counts. We affirm.

I. Facts

At trial, testimony established that on November 18, 2017, William Wood

discovered that Robert Barron’s residence and outbuildings in Summit, Arkansas, had been
broken into. Wood, a friend of Barron’s, knew Barron was out of state for an extended

period, and he was checking on Barron’s property, which was marked with no trespassing

signs. Wood explained that Barron’s driveway had a locked gate, so he had entered the

property using the power-line right-of-way. Wood noticed some items strewn about the

property, and he knew that when he had been to the property less than a month before to

read the water meter, the property was in “perfect” condition. Wood called the Marion

County Sheriff’s Office to report the break-in.

The officers who responded also had to access the property using the power-line

easement due to the lock on the gate across the driveway, and they reported numerous items

strewn up and down the road, including bags and boxes of tools and a trash can filled with

tools located at the bottom of the power-line easement. Doors on two sheds were open

and the buildings had been rummaged through, and the sliding glass door to Barron’s house

had been broken. Officers observed that a camper trailer on the property had pry marks on

the door; it appeared an attempt had been made to enter the camper, but the door was

locked. When Wood received permission from Barron for the officers to enter the house,

they discovered the power had been shut off. Barron told them that the power was on

when he left. Officers described the house as “completely destroyed”; every room had been

ransacked, items were gathered in piles throughout the house as though someone was

coming back to remove the remaining items, televisions were missing, and the hinges and

door of a heavy-duty fireproof gun safe had been removed. Barron informed the officers

that he had guns in the safe; all the guns were missing.

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While investigating the break-in, officers observed two males walking down the road

from the locked, gated driveway at the front of the property. As the two men initially

approached the house they were walking normally, but then they were described by officers

as beginning to walk “suspiciously” in a crouched, sneaking position the closer they got to

the house, and one man began walking to the front of the residence while the other man

headed toward the rear of the residence. The men were later identified as Cobb and

Anthony Contreras. When officers told the two men to freeze, Cobb began to run from

the scene, but he eventually obeyed orders to halt. When apprehended, Cobb had a gray

backpack and a ratchet in his hand. When asked why he was on the property, Cobb stated

they were going to Allen’s Grocery and this was a shortcut; however, one officer testified

Allen’s Grocery was in the opposite direction, and it was unnecessary for the men to cross

Barron’s property to get to the grocery. Cobb then asked the officers “what the f***” they

were doing there and how did they get there.

Officers were able to obtain pictures taken by a game camera located outside the

residence. While unable to see the man’s face, the pictures showed a man wearing a tan

shirt, pants, a camouflage hat, and white tennis shoes and holding a laundry basket full of

items. One officer testified he saw Cobb wearing a hat and shoes resembling the ones in

the game-camera pictures.

Robert Barron testified that his property sits on thirty lots, which are all wooded

except the area around the house. He said his driveway gate was locked when he went out

of town, but someone could go around the gate or climb it if they wanted to do so. He

explained that he had two game cameras outside; one had been stolen and the other had

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not. Barron described his house as more or less “demolished” and “trashed” on the inside.

The power had been turned off; Barron believed the alarms scared the person who had

entered the house and turning off the power silenced the alarms. Barron testified that two

small safes containing birth certificates, car titles, silver, gold, coins, and his grandfather’s

gold watches were torn from the wall where they had been bolted to the sheetrock, and

they had been removed from the premises. He said insurance paid him $10,000 for the loss

of his property and another $4,000 for the loss of his guns, but he estimated his total loss

was around $35,000, and insurance did not cover the silver, gold, or his tools. He said some

of the items taken from his shop building included generators, a power washer, and bicycles,

and he believed someone was coming back because his large air compressor had been placed

by the door. Barron testified that the backpack and ratchet found on Cobb when he was

apprehended looked like his property. He explained that there had also been an attempt to

enter his thirty-two-foot camper by prying the door, but it was locked; he estimated it

would cost at least $500 to replace the door, so he had simply attempted to hammer the

frame back to its original shape.

When the State rested its case, Cobb moved for a directed verdict on all counts,

arguing there was no evidence he was the person who entered Barron’s property and

committed the offenses. He contended that he had found the items in his possession when

he was apprehended (the backpack and the rachet) on the easement, and it was not a crime

to pick up misplaced or abandoned property. This motion was denied. Cobb presented no

witnesses. He renewed his motion for directed verdict, which was again denied. The jury

returned guilty verdicts on all counts.

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II. Standard of Review

A directed-verdict motion is a challenge to the sufficiency of the evidence. Sanford

v. State, 2019 Ark. App. 10, 567 S.W.3d 553. Our test for determining the sufficiency of

the evidence is whether the verdict is supported by substantial evidence, direct or

circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion

one way or the other beyond suspicion and conjecture. Hamrick v. State, 2019 Ark. App.

298, 577 S.W.3d 734.

The law makes no distinction between circumstantial and direct evidence when

reviewing for sufficiency of the evidence. Sanford, supra. The jury is permitted to draw any

reasonable inference from circumstantial evidence to the same extent that it can from direct

evidence. Deviney v. State, 14 Ark. App. 70, 685 S.W.2d 179 (1985). Guilt can be

established without eyewitness testimony, and evidence of guilt is not less because it is

circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Circumstantial

evidence may constitute substantial evidence to support a conviction if it excludes every

other reasonable hypothesis other than the guilt of the accused. Hamrick, supra. Whether

circumstantial evidence excludes every other reasonable hypothesis consistent with

innocence is a determination for the fact-finder; on review, the appellate court must

determine whether the fact-finder had to resort to speculation and conjecture to reach its

decision. Sanford, supra. On appeal, the evidence is viewed in the light most favorable to

the verdict, and only evidence supporting the verdict is considered. Hamrick, supra. The

appellate court does not weigh the evidence presented in the circuit court as that is a matter

for the fact-finder, nor does it assess the credibility of the witnesses. Hamrick, supra.

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III. Discussion

Cobb was convicted of seven offenses: residential burglary, attempted breaking or

entering, criminal mischief in the first degree, theft of a firearm, theft of property, and two

counts of breaking or entering. A person commits residential burglary if he or she “enters

or remains unlawfully in a residential occupiable structure of another person with the

purpose of committing in the residential occupiable structure any offense punishable by

imprisonment.” Ark. Code Ann. § 5-39-201(a)(1) (Repl. 2013). A person commits theft

of property if he or she 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 of the property.” Ark. Code Ann. § 5-36-103(a)(1) (Repl. 2013).

Theft of property is a Class D felony if the “value of the property is five thousand dollars

($5,000) or less but more than one thousand dollars ($1,000)” or if the property is “a firearm

valued at less than two thousand five hundred dollars ($2,500).” Ark. Code Ann. § 5-36-

103(b)(3)(A) & (B) (Repl. 2013).

A person commits breaking or entering if “for the purpose of committing a theft or

felony he or she breaks or enters into any building, structure, or vehicle.” Ark. Code Ann.

§ 5-39-202(a)(1). It constitutes a separate offense for the breaking or entering into of each

separate building, structure, or vehicle. Ark. Code Ann. § 5-39-202(b)(1). A person

attempts to commit an offense if he or she “purposely engages in conduct that constitutes a

substantial step in a course of conduct intended to culminate in the commission of the

offense whether or not the attendant circumstances are as the person believes them to be.”

Ark. Code Ann. § 5-3-201(a)(2). A person commits criminal mischief in the first degree if

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he or she “purposely and without legal justification destroys or causes damage to any

property of another.” Ark. Code Ann. § 5-38-203(a)(1). This offense is a Class D felony

if the amount of actual damage is more than $1,000 but less than $5,000. Ark. Code Ann.

§ 5-38-203(b)(2).

Cobb’s overarching sufficiency argument for all seven offenses turns on the fact that

the evidence in this case is entirely circumstantial. He argues the State failed to produce any

direct evidence of his involvement in the crimes and further left the jury to rely on

speculation and conjecture to convict him.

Cobb is correct that all the evidence in this case is circumstantial. However,

circumstantial evidence may constitute substantial evidence to support a conviction if it

excludes every other reasonable hypothesis other than the guilt of the accused. Hamrick,

supra. This court must now determine whether the fact-finder resorted to speculation and

conjecture to reach its decision. We hold it did not.

Cobb argues that the State “woefully failed to develop the case and investigate

reasonable alternative theories.” He further contends that none of the State’s witnesses

could state with certainty that he was the person who had committed these offenses on

Barron’s property. Although it is essential to every case that the defendant be shown as the

one who committed the crime, that connection can be inferred from all the facts and

circumstances of the case. Davis v. State, 2011 Ark. App. 561.

In this case, the State presented sufficient circumstantial evidence from which the

jury could reasonably infer that Cobb was the person who had committed these offenses.

Cobb and Contreras entered Barron’s property, which contained thirty lots, bypassing a

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locked gate. They began walking “suspiciously” as they approached Barron’s house and

then split up, with Cobb going to the front of the residence and Contreras to the rear of

the residence. When confronted by law-enforcement officers, Cobb began to run away but

was apprehended. Fleeing from the scene of the crime is relevant to the issue of guilt.

Goforth v. State, 2010 Ark. App. 735. When questioned why he was on the property, Cobb

stated it was a shortcut to Allen’s Grocery; however, one of the officers testified the store

was in the opposite direction, and there was no reason for the two men to be on the

property. Improbable explanations of incriminating conduct can be considered to infer

evidence of guilt. Id. It was apparent Cobb was unaware the officers were on the property,

as he asked one officer “what the f***” was he doing there and how did he get there.

When apprehended, Cobb had a backpack and a ratchet in his hand, both of which Barron

testified looked like his property. Furthermore, a game camera captured photos of a man

with a laundry basket of items; while the man’s face was not visible, law-enforcement

testimony indicated that the hat and the shoes the man was wearing resembled the ones

worn by Cobb when he was apprehended. Given the entirety of this circumstantial

evidence, the jury could conclude without resorting to speculation or conjecture that Cobb

had committed the offenses.

Affirmed.

VIRDEN and VAUGHT, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

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