Mosley v. State

Cite as 2017 Ark. App. 487

ARKANSAS COURT OF APPEALS

DIVISION IV
No.CR-16-593

Opinion Delivered: September 27, 2017

APPEAL FROM THE WASHINGTON
MARK ANTHONY MOSLEY COUNTY CIRCUIT COURT
APPELLANT [NO. 72CR-15-765]

V.
HONORABLE MARK LINDSAY,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Mark A. Mosley appeals after he was convicted by the Washington County

Circuit Court of theft of property as a habitual offender. He was sentenced to serve a total

of 120 months’ imprisonment. On appeal, Mosley’s sole argument is that there was

insufficient evidence to convict him of theft of property. We affirm.

Mosley was arrested and charged with commercial burglary, a class C felony, under

Arkansas Code Annotated section 5-39-201(b)(1) (Repl. 2013); theft of property, a class C

felony under Arkansas Code Annotated section 5-36-103(b)(2); and as a habitual offender

under Arkansas Code Annotated section 5-4-501(b). A jury trial was held on December

14–15, 2015, and the following facts were introduced at trial.

Williams Tractor is located in Fayetteville, Arkansas, and sells farm implements and

lawn equipment. At approximately 3:00 a.m. on Friday, March 27, 2015, the silent-security

alarm went off at Williams Tractor. The alarm-monitoring company contacted the
Cite as 2017 Ark. App. 487

designated employee of Williams Tractor, and he drove to the business. As this employee

drove up to Williams Tractor, he saw the front gate open and a zero-turn lawn mower

sitting near the gate. He also noticed a U-Haul truck driving in the vicinity. The

Fayetteville Police Department arrived on the scene. During their immediate investigation,

police officers noticed distinct shoe prints on and about the zero-turn lawn mower parked

at the gate. Apparently, the lawn mower had run out of gas. Police officers saw a man

walking down a nearby street. Police stopped the man, and during their conversation, the

man told them that he had been fighting with his girlfriend. After further discussions and

observations of this man, they determined his shoe prints matched the distinct shoe prints

on and about the mower. The man, later identified as Ledrick Hinton, was arrested for

loitering and commercial theft of property.

Later, police found a second zero-turn lawn mower outside the fence and also out

of gas. A Polaris Razor ATV (Polaris Razor), worth approximately $14,000, was discovered

missing. The ground was wet around Williams Tractor, and police were able to follow tire

tracks out of the gate and around the building toward the back of the property. At the end

of the tire tracks, police discovered a makeshift ramp made of railroad ties, mulch, and brush.

Police subsequently contacted the neighboring business, Total Document Solutions (TDS).

TDS had a security camera trained on the rear of its property, which coincidentally

overlooked the rear of the Williams Tractor property. This security-camera footage

contained images of the theft of the Polaris Razor. The TDS images with time stamps

between 2:28 a.m. and 3:03 a.m. depicted two or three unidentifiable men, a white Chevy

Tahoe, and a U-Haul truck.

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While Ledrick Hinton was being held at the Washington County detention center,

Detective Scott O’Dell questioned him. During questioning, Hinton allowed Detective

O’Dell to look at his cell phone. Detective O’Dell testified at trial that there were two

phone numbers listed in Hinton’s phone that were very active during the time just before

and after the theft. The contacts associated with those numbers according to Hinton’s phone

were “Mark” and “Mark in the Dark.” Detective O’Dell testified that after further research,

he determined that Verizon was the carrier for the phone number associated with “Mark in

the Dark,” and AT&T was the carrier for the phone number associated with “Mark.” The

AT&T phone could be tracked through cell-tower usage to be in the vicinity of Williams

Tractor at the time of the theft, around 3:00 a.m., and the AT&T phone was later used

around 8:30–9:00 that same morning near Palestine, Arkansas. Also, Detective O’Dell was

able to retrieve information from the AT&T phone that this phone was used to contact a

person by the name of Larry Wilson that same morning. Once the AT&T phone was

identified with Mosley, Detective O’Dell researched law enforcement records and

discovered that Mosley was the registered owner of a white 2002 Chevy Tahoe—the same

vehicle used in the Williams Tractor theft.

Later, Detective O’Dell contacted Larry Wilson in Wynne, Arkansas, and asked him

about the phone calls between him and Mosley on the morning of March 27. Wilson

subsequently testified that he had a prior relationship with Mosley. He did not know

Mosley’s last name; he knew him only as Mark the “Little Rock Man.” Wilson testified

that Mosley contacted him either by text or phone the morning of March 27 and asked him

if he would be interested in buying a Polaris ATV. They met in the parking lot of a service

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station off of I-40 in Palestine, Arkansas. Mosley was driving a white SUV, and there was

a U-Haul truck present. In the back of the U-Haul truck was what appeared to be a new

Polaris Razor ATV. Wilson told Mosley that he was not interested in the “Razor” but that

if Mosley had a “Ranger,” he would be interested. Wilson testified that Mosley offered to

sell him the “Razor” for $8500, but he declined.

In addition to the testimony of Detective O’Dell and Larry Wilson, there was

extensive testimony from representatives of AT&T, law enforcement officials, state agencies,

and others concerning the identity and locations of Mosley’s AT&T phone and the

machinations necessary to follow his phone around the state. There was testimony from

Jessica Schermacher, an employee of the State of Arkansas. One of her job responsibilities

is to maintain the database of persons on parole. Persons on parole must provide the state

with accurate contact information. Mosley was on parole for an unrelated crime on March

27, 2015, the date of the Williams Tractor theft. Schermacher testified that Mosley had

previously provided the agency with two phone numbers for his contact information.

Those telephone numbers were the same numbers as the AT&T and Verizon phone

numbers identified by Detective O’Dell and identified as “Mark” and “Mark in the Dark”

on Hinton’s phone. Furthermore, the AT&T number was the same number used by Mosley

to contact Wilson to arrange for the meeting in Palestine after the theft.

Brian Wann, an AT&T Mobility employee in Fayetteville, Arkansas, testified that he

had looked at the phone records for the AT&T phone. Wann testified regarding the cell-

tower records for the AT&T phone and confirmed much of the information already

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provided by Detective O’Dell. On cross-examination, Wann admitted that Otis Brown,

not Mosley, was listed as the subscriber for the AT&T phone.

Whitney Bohannan, a title clerk and finance employee at Williams Tractor, testified

that the Razor was worth $14,015.47, including the additional accessories that were added

to it.

After the State rested, Mosley moved for a directed verdict. Regarding the theft-of-

property charge, Mosley argued that the State failed to prove that he had knowingly taken

or exercised unauthorized control over, or made an unauthorized transfer of interest in, the

property of another person while depriving the owner thereof. He more specifically argued

that the only evidence introduced by the State was that he had control over a Razor in

Palestine, Arkansas, which was in another county and outside the jurisdiction of the instant

charge. The trial court denied the motion.

The jury found Mosley not guilty of commercial burglary and guilty of theft of

property. The jury recommended a sentence of ten years, which the trial court imposed.

This timely appeal followed.

I. Sufficiency of the Evidence

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

Hinton v. State, 2015 Ark. 479, 477 S.W.3d 517. When reviewing a challenge to the

sufficiency of the evidence, this court assesses the evidence in the light most favorable to the

State and considers only the evidence that supports the verdict. Id. The sufficiency of the

evidence is tested to determine whether the verdict is supported by substantial evidence,

direct or circumstantial. Wyles v. State, 368 Ark. 646, 249 S.W.3d 782 (2007); Boyd v. State,

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2016 Ark. App. 407, 500 S.W.3d 772. Substantial evidence is evidence which is of sufficient

force and character that will, with reasonable certainty, compel a conclusion one way or the

other, without resorting to speculation or conjecture. Hinton, supra. Finally, the credibility

of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe

all or part of any witness’s testimony and may resolve questions of conflicting testimony and

inconsistent evidence. Id.

Circumstantial evidence may constitute substantial evidence to support a conviction.

Wyles, supra. Guilt can be established without direct evidence, and evidence of guilt is not

less because it is circumstantial. Id. The longstanding rule is that for circumstantial evidence

to be substantial, it must exclude every other reasonable hypothesis than that of guilt of the

accused. Id. Stated another way, circumstantial evidence provides a basis to support a

conviction if it is consistent with the defendant’s guilt and inconsistent with any other

reasonable conclusion. Id. Such a determination is a question of fact for the jury to

determine. Id. We will disturb the jury’s determination only if the evidence did not meet

the required standards, leaving the jury to speculation and conjecture in reaching its verdict.

Id.

Mosley contends that the trial court should have granted his motion for directed

verdict because the circumstantial evidence produced at trial was insufficient to find him

guilty of theft of property. We disagree.

A person commits theft of property if he or she knowingly (1) 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; or (2) obtains

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the property of another person by deception or by threat with the purpose of depriving the

owner of the property. Ark. Code Ann. § 5-36-103(a). Theft of property is a class C felony

if the value of the property is less than twenty-five thousand dollars ($25,000) but more than

five thousand dollars ($5,000). Ark. Code Ann. § 5-36-103(b)(2)(A).

Here, the circumstantial evidence was sufficient to show that Mosley knowingly

exercised unauthorized control over the Polaris Razor when he participated in the theft

from Williams Tractor in Fayetteville. Detective O’Dell testified at length that he had

linked information from two phone numbers that Mosley had given for himself to a state

agency to the same numbers that were listed in Hinton’s phone as “Mark” and “Mark in

the Dark.” Cell-phone-location data placed Mosley’s AT&T phone in the vicinity of

Williams Tractor at the time of the theft and in the same areas and at the same times that

Mosley had corroborated during the investigation. Video surveillance showed that a white

SUV was used in the theft of the Polaris Razor and that Mosley owned a similar white 2002

Chevy Tahoe. Furthermore, Mosley’s subsequent attempt to sell the Polaris Razor was

sufficient to prove that his purpose was to deprive Williams Tractor of its property. Wilson

testified that Mosley contacted him on the morning of the theft and attempted to sell him

what appeared to be a new Polaris Razor for only $8500. Mosley was driving the 2002

white Chevy Tahoe, and the Polaris Razor was in a U-Haul truck similar to the U-Haul

truck seen on the security tapes. After considering all the circumstantial evidence in light

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of our standard of review, we hold that there was sufficient evidence to support Mosley’s

conviction for theft of property. As such, we affirm.

Affirmed.

ABRAMSON and VAUGHT, JJ., agree.

Margo D. Warner, for appellant.

Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., and Bryan Foster, Law

Student Admitted to Practice Pursuant to Rule XV of the Rules Governing Admission to

the Bar of the Supreme Court under the Supervision of Darnisa Evans Johnson, Deputy Att’y

Gen., for appellee.

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