DOUG MARTIN, Judge.
Appellant Dennis Andrews was charged with one count of theft of property, one count of first-degree criminal mischief, and one count of impairing the operation of a vital public facility. A Jackson County jury convicted him of theft of property and criminal mischief but acquitted him of the count of impairing the operation of a vital public facility. We affirm Andrews's convictions as modified.
The three charges arose from the removal of some quantity of "neutral wire" from utility poles owned by Farmers Electric Co-Op in Jackson County. The original information specifically related those offenses to the date of June 13, 2010. On the morning of Andrews's jury trial, the State orally moved to amend the information to expand the date range of the offenses to encompass June 10 through June 13, 2010. Andrews objected, arguing that he had prepared his defense based on the
Andrews's first argument on appeal is that the circuit court erred in allowing the State to present testimony from Gene Swett, the general manager of Farmers Electric, concerning a repair estimate for the damage done to the utility lines. Andrews contends that the State's failure to divulge the content of Swett's testimony prior to trial constituted a violation of the discovery rules, and thus the evidence should not have been admitted; without this particular evidence, Andrews continues, the evidence was insufficient to support the verdicts against him. Because, however, double-jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence first, see Chunestudy v. State, 2012 Ark. 222, 408 S.W.3d 55, we consider Andrews's sufficiency argument prior to his discovery-rule argument.
Andrews was convicted of one count of theft and one count of first-degree criminal mischief. A person commits the offense of theft of property if he 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.2006).
The evidence introduced by the State at trial showed the following. Sometime in June 2010, Darlene Madden, a meter reader for Farmers Electric, noticed a rope hanging from a power line located on Highway 145 near the Cache River Bridge. Madden noted that the rope, which had a short length of yellow chain attached to it, was hanging from the second line up, about ten or twelve feet from the utility pole. Madden contacted Gene Swett, the general manager of Farmers Electric, to report that there was something suspicious hanging on his power lines.
Swett reported the theft of the neutral wire from the Cache River Bridge area to the sheriff's department on June 11, 2010. Swett sent a serviceman to that location and had him retrieve the rope that Madden had discovered. Investigator David Platt of the Jackson County Sheriff's Office went to the Cache River Bridge and observed that eight spans of wire had been cut from the poles.
A "couple of days after that," according to Swett's testimony, there was a second "instance of some wire being taken." This theft, which was reported to the sheriff's department on June 14, 2010, occurred in the vicinity of Beedeville, Arkansas. Jackson County Sheriff's Department Officer Greg Ivey went to Swett's office to investigate this theft. Swett gave Ivey the piece of rope with a hook and three links of plastic chain that had been recovered from the Cache River Bridge theft.
Platt and Ivey began investigating the case and, after discovering that Andrews had sold a quantity of copper wire to Simons Scrap Metal on June 5, 2010, developed Andrews as a suspect. Platt and Ivey located Andrews in the parking lot of a church on June 15, 2010. Although they initially intended only to talk to him at that time, both Platt and Ivey observed barrels containing coiled copper wire in the bed of Andrews's truck. In addition to the barrels of wire, there was a length of yellow-colored plastic chain and a pair of wire cutters. The officers arrested both Andrews and the man who was with him, Brian Jones. Both Platt and Ivey acknowledged that there were two separate theft reports, one filed on June 11, 2010, and the other filed on June 14, 2010. Neither, however, could give an exact date of when either theft actually occurred.
At trial, Swett testified, over Andrews's objection, that he had prepared an estimate of the costs to replace the stolen wire. Swett stated that the repairs to the two damaged sections of wire totaled slightly more than $12,125. On cross-examination, Swett reiterated that the number that he gave for damages "was a summation of the two locations, based on our in-house work order."
The State also called Brian Jones to testify at trial. Jones admitted that he had stolen the wire from the Cache River Bridge area, stating that Andrews was with him and that they had stolen "probably eight to twelve spans of neutral wire that night." Jones identified the rope and short fragment of yellow chain, explaining that he and Andrews left the rope and chain hanging from the wire because the chain broke and "slingshotted back up and was out of reach." On cross-examination, Jones was adamant that Andrews "only stole wire with me once."
Following the State's presentation of its case, Andrews moved for a directed verdict, arguing that the proof showed that
The circuit court denied Andrews's motions, and Andrews rested without presenting proof and renewed his motions, which the circuit court again denied.
On appeal, Andrews argues that there was insufficient evidence to support his theft and criminal-mischief convictions because the State failed to introduce evidence of the damages and value elements of those crimes. Our supreme court has set forth the well-settled standard of review for challenges to the sufficiency of the evidence:
Navarro v. State, 371 Ark. 179, 186, 264 S.W.3d 530, 535 (2007) (citations omitted); Ali v. State, 2011 Ark.App. 758, 2011 WL 6064865.
The crux of Andrews's argument is that, while the State put on proof to link him to the Cache River Bridge theft that occurred on June 10, 2011, the State failed to put on any evidence that linked him to the June 13, 2011 Beedeville theft. In addition, Andrews urges that the only evidence offered by the State as to the value of the stolen property was Gene Swett's testimony that it cost $12,125 to repair both locations. Andrews notes that Swett could not divide that cost up between the two locations or say how much was attributable to each location. Thus, while the evidence showed the combined damages for two thefts, there was no evidence linking Andrews to one of them, and the jury was accordingly left to speculate "how much of that figure was attributable to each incident, how much was attributable to the theft of wire, and how much was attributable to damage from criminal mischief." We agree.
Having examined the transcript in detail, we conclude that, while there is clearly proof of Andrews's involvement with the Cache River Bridge theft — Jones's testimony and the fact that the chain that was left dangling from the wires there matched the chain that was found in the back of Andrews's truck — there is no evidence in the record that links Andrews to the June 13 Beedeville theft. Not one witness testified that Andrews was seen in that area or that there was any physical evidence (such as the chain and rope from the Cache
The only evidence that could even have remotely linked Andrews to the June 13 theft was the fact that there was a large quantity of copper wire in the back of his truck. Our concern with that, however, is that the State failed to produce any evidence that would show how much wire, whether by weight or length, was stolen from the Cache River Bridge;
Further, the theft and criminal-mischief charges were brought against Andrews as Class C felonies, which required the State to prove that the value of the property stolen or damaged had a value between $500 and $2,500 for the theft charge, and in excess of $500 for the criminal-mischief charge. Swett's testimony only provided an aggregate sum of how much it cost to repair both damaged sites. Without evidence linking Andrews to the Beedeville theft, without evidence as to what proportion of wire came from each theft, and without evidence as to what the repairs at each separate theft site cost, however, the jury was again forced to speculate as to the value of the wire from the single theft — the Cache River Bridge theft — that the State proved Andrews had committed.
Simply stated, the State failed to prove that Andrews either exercised control over property worth between $500 and $2,500 (theft) or destroyed or caused damage to property in excess of $500 (criminal mischief). Because, however, there was substantial evidence that Andrews committed the offenses of theft and criminal mischief with regard to the Cache River Bridge incident, and there is no minimum property value necessary for misdemeanor theft of property, see Ark.Code Ann. § 5-36-103(b)(4) and Gines v. State, 2009 Ark.App. 628, 2009 WL 3153254, or first-degree criminal mischief, see Ark.Code Ann. § 5-38-203(b)(2),
In his final argument on appeal, Andrews argues that the trial court erred in failing to give his proffered jury instruction allowing the jury to consider imposing a fine without imprisonment, notwithstanding his status as a habitual offender. The State concedes error on this point.
Following Andrews's conviction, the circuit court instructed the jury that Andrews had at least four prior felonies and was classified as a habitual offender under Arkansas Code Annotated section 5-4-501. Andrews objected to the trial court's instructing the jury with AMI Crim.2d 9202, which provides that a Class C felony offense, when committed by a habitual offender,
The State concedes error on this point, agreeing that the supreme court has held that AMI Crim.2d 9202 does not accurately reflect the law. Jones v. State, 357 Ark. 545, 558, 182 S.W.3d 485, 492 (2004).
Affirmed as modified.
VAUGHT, C.J., and GLOVER, J., agree.