Cite as 2017 Ark. App. 576

ARKANSAS COURT OF APPEALS

DIVISION III 

No. CR-16-709

DUSTIN L. MERCHANT

 

 APPELLANT

V.

STATE OF ARKANSAS

 

 APPELLEE

Opinion Delivered November 1, 2017

APPEAL FROM THE HOWARD

COUNTY CIRCUIT COURT 

[NO. 31CR-15-79] 

HONORABLE CHARLES A. 

YEARGAN, JUDGE

AFFIRMED

DAVID M. GLOVER, Judge

 

Dustin Merchant was convicted by a Howard County jury of theft of utility property, 

a Class B felony. He was sentenced as a habitual offender to fifteen years in prison and fined 

$7500. He was also ordered to pay restitution of $16,100 to Arkansas Southern Railroad. 

On appeal, Merchant makes four arguments: (1) his conviction should be overturned 

because the property did not meet the statutory definition of “utility property”; (2) the jury 

charge did not require the State to prove all elements required by the statute; (3) the lesserincluded offense of misdemeanor theft should have been presented to the jury; and (4) the 

trial court erred in denying his motion for directed verdict because the State failed to 

introduce substantial evidence for each of the elements of theft of utility property. We 

affirm.
Cite as 2017 Ark. App. 576

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Sufficiency of the Evidence

Although it is his last point on appeal, due to double-jeopardy concerns, we must 

address Merchant’s sufficiency-of-the-evidence challenge first. Todd v. State, 2016 Ark. App. 

280, 494 S.W.3d 444. Merchant was charged with theft of utility property valued at $500 

or more pursuant to Arkansas Code Annotated section 5-36-103(a)(1) and (b)(1)(E)(i)–

(ii)(a)–(b) (Repl. 2013). This statute provides that 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). Such a theft is a Class B felony if 

the property is utility property and the value of the property is $500 or more. Ark. Code 

Ann. § 5-36-103(b)(1)(E)(i). “Utility” is defined as “any person or entity providing to the 

public gas, electricity, water, sewer, telephone, telegraph, radio, radio common carrier, 

railway, railroad, cable and broadcast television, video, or Internet services.” Ark. Code 

Ann. § 536-103(b)(1)(E)(ii)(a). “Utility property” is defined as 

any component that is reasonably necessary to provide utility services, including 

without limitation any wire, pole, facility, machinery, tool, equipment, cable, 

insulator, switch, signal, duct, fiber optic cable, conduit, plant, work, system, 

substation, transmission or distribution structure, line, street lighting fixture, 

generating plant, equipment, pipe, main, transformer, underground line, gas 

compressor, meter, or any other building or structure or part of a building or 

structure that a utility uses in the production or use of its services.

Ark. Code Ann. § 5-36-103(b)(1)(E)(ii)(b). 

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

v. State, 2017 Ark. App. 49, 510 S.W.3d 311. Our test for determining the sufficiency of 

the evidence is whether the verdict is supported by substantial evidence. Wells v. State, 2017 
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3 

Ark. App. 174, 518 S.W.3d 106. Evidence is substantial if it is of sufficient force and 

character to compel reasonable minds to reach a conclusion and pass beyond suspicion and 

conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State, 

and only the evidence supporting the verdict is considered. Wells, supra. 

Merchant’s sufficiency argument is not preserved for appellate review. At the close 

of the State’s case, Merchant’s counsel made the following directed-verdict motion: “Your 

Honor, at this time I would make a motion for a directed verdict based on the State’s 

inability to prove their case beyond a reasonable doubt as to each and every element of the 

offense.” This motion was denied. Merchant called no witnesses and renewed his motion 

for directed verdict, which was again denied. 

Rule 33.1(b) of the Arkansas Rules of Criminal Procedure requires that a directedverdict motion based on insufficient evidence must specify in what manner the evidence is 

deficient; a motion merely stating that the evidence is insufficient does not preserve issues 

concerning a specific deficiency such as insufficient proof on the elements of the offense for 

appellate review. Rule 33.1 is to be strictly construed. Pinell v. State, 364 Ark. 353, 219 

S.W.3d 168 (2005). The reasoning behind Rule 33.1 “is that when specific grounds are 

stated and the absent proof is pinpointed, the circuit court can either grant the motion, or, 

if justice requires, allow the State to reopen its case and supply the missing proof.” Id. at 

357, 219 S.W.3d at 171. Another reason the motion must be specific is because the appellate 

courts cannot decide an issue for the first time on appeal. Id. Because Merchant’s directedverdict motion failed to specify in what manner the State’s proof was insufficient, this 

argument is not preserved for appellate review. 
Cite as 2017 Ark. App. 576

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Definition of Utility Property

Merchant was charged with stealing copper wiring from an out-of-service 

locomotive. Merchant argues, without citation to authority, that neither the locomotive 

nor the copper wiring was “utility property” and that it was not proved that Arkansas 

Southern Railroad, the entity that owned the locomotive from which the copper wiring 

had been stolen, was a utility. These arguments were never made to the circuit court, and 

Merchant is now precluded from raising them for the first time on appeal. Torres v. State, 

2017 Ark. App. 425. A party is bound by the nature and scope of the objections and 

arguments made at trial and may not enlarge or change those grounds on appeal. Brewer v. 

State, 2017 Ark. App. 119, 515 S.W.3d 629. 

Jury Instruction

Merchant next argues that the model jury instruction for theft of utility property does 

not require the State to prove that the theft was from a “utility” and was “utility property.” 

He further argues that the jury-verdict form also omitted the requirement for the State to 

prove the stolen property was “utility property.” These arguments were never made to the 

circuit court; therefore, they cannot be raised for the first time on appeal. Torres, supra. 

Failure to Include Misdemeanor Theft as a Lesser-Included Offense

Merchant’s last argument is that the jury should have been instructed on 

misdemeanor theft as a lesser-included offense of theft of utility property. Misdemeanor 

theft is a lesser-included offense of felony theft of property. Washington v. State, 2013 Ark. 

App. 148. However, Merchant failed to request that the lesser-included instruction be 

submitted to the jury for consideration; therefore, the issue is not preserved for appellate 
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review. Bryant v. State, 2011 Ark. App. 348, 384 S.W.3d 46. Furthermore, Merchant failed 

to raise the argument of a lesser-included offense when he moved for a directed verdict, 

which also precludes our consideration of this argument. Bryant, supra. 

Affirmed. 

HARRISON and VAUGHT, JJ., agree.

J. Randle Smolarz, for appellant. 

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.