Ashe v. State

James R. Cooper, Judge, dissenting. I dissent because I believe that there was insufficient evidence to convict the appellant of theft.

The State was required to prove that the appellant knowingly took or exercised control over the auto with the purpose of depriving the owner thereof. See Ark. Code Ann. § 5-36-103 (Supp. 1995). The State did prove that a twelve-year-old auto was stolen from a used car lot within a few blocks of where the appellant’s sister lived, that the auto was found nearly two months later in the parking lot of the apartment complex where the appellant lived, and that a detached rearview mirror found on the passenger side front floorboard bore the appellant’s fingerprint.

The State’s evidence is wholly circumstantial. As such, it will provide substantial evidence only if it excludes every other reasonable hypothesis. Although this is a question for the fact-finder to determine, the fact-finder must not be left to speculation and conjecture; two equally reasonable conclusions regarding what occurred merely give rise to a suspicion of guilt, and that is insufficient as a matter of law to sustain a criminal conviction. Carter v. State, 324 Ark. 395 , 921 S.W.2d 924 (1996); Reams v. State, 45 Ark. App. 7 , 870 S.W.2d 404 (1994).

Every essential element of the offense must be established by substantial evidence. See Ward v. Lockhart, 841 F.2d 844 (1988). But where is the evidence that the appellant “knowingly took or exercised control over” the auto in the case at bar? Although the evidence might perhaps be sufficient to show that the appellant had been a passenger in the auto, there is nothing to indicate that he took or exercised control over it. The majority places great reliance on the single fingerprint found on the detached rearview mirror, and declares that Arkansas has followed a trend toward considering the presence of a defendant’s fingerprints at a crime scene to be substantial evidence per se. This is a misstatement of the law. The presence of fingerprints may or may not establish whether an offense has been committed, depending upon the elements of the offense charged and the circumstances of the particular case. See Tucker v. State, 50 Ark. App. 203 , 901 S.W.2d 865 (1995).

For example, in Smith v. State, 34 Ark. App. 150 , 806 S.W.2d 391 (1991), we held that twelve fingerprints on an automobile were insufficient to sustain a conviction for theft by receiving where the vehicle was parked in a place accessible to the general public and no one had seen the appellant in control of, or even inside, the vehicle. In the case at bar, the appellant was convicted of the greater offense of theft on similar evidence, and I dissent.

Neal and Crabtree, JJ., join in this dissent.