Jay Parker v. State of Arkansas

Cite as 2022 Ark. App. 516
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-22-83

Opinion Delivered December 14, 2022
JAY PARKER
APPELLANT APPEAL FROM THE SCOTT
COUNTY CIRCUIT COURT
V. [NO. 64CV-19-85]

STATE OF ARKANSAS HONORABLE JERRY DON RAMEY,
APPELLEE JUDGE

AFFIRMED

MIKE MURPHY, Judge

Appellant Jay Parker appeals the verdict of the Scott County jury finding him guilty

of two counts of theft and one count of cruelty to animals and sentencing him to six years

in the Arkansas Department of Correction. His arguments on appeal could be generally

described as challenges to the sufficiency of the evidence and assertions of prejudice due to

the charging information and an issue with an alternate juror. 1 We affirm.

At trial, Dr. Robert Cobb, a retired veterinarian, and co-owner of Sprayberry CGC,

Incorporated (Sprayberry), testified that in December 2017, Sprayberry and Parker entered

into a cattle-care contract whereby Sprayberry would pay Parker to care for Sprayberry’s cattle.

The contract contemplated that Sprayberry would entrust 337 bred cows to Parker’s care and

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But for the State’s brief, this case would likely havebeen sent back for rebriefing.
management. Under the agreement, Sprayberry would pay Parker $425 per cow per year,

and in turn, Parker would ensure that the needs of the cattle were met. The contract

specifically provided that Parker’s cattle company “will pay for all feed, water, mineral, labor,

lick supplements, medicine, dewormer and vaccinations (except for vaccinations given to

calves at weaning.” Parker was also responsible for supplemental rations as needed to

maintain a good body condition on all the animals. Calves were to be weaned at five hundred

pounds and cared for until ready to market at approximately six hundred pounds. The

agreement further provided that if more than 2 percent of the cattle died, Parker would

compensate Sprayberry for the loss. Sprayberry was to “be notified in every death loss by

phone, text, or email.”

Dr. Cobb testified that in December 2017, Sprayberry shipped 337 healthy bred cows

to Parker and paid Parker a total of $75,825 for the first year of the contract. He said nothing

in the contract allowed Parker to sell the cattle. At Parker’s behest, Sprayberry purchased

ninety-six more cows around March 2018 and compensated Parker for their care as well.

Around the same time, Sprayberry was getting concerned with the lack of communication

from Parker. He sent his father-in-law to check on the cows and was told they were not

looking good and had lost a lot of weight. Sprayberry opted to wean the calves four months

early. He said he contacted Parker with his concerns about their weight and Parker promised

to get them more hay and feed. Sprayberry learned the cattle were “declining fast” in October

2018, so the co-owners decided to move the cattle. When they arrived to move the cattle,

there were 112 cows, and 257 calves were missing. The remaining animals were weak,

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malnourished, and in very bad shape. Some died during the move. Dr. Cobb said that, in

total, over 60 percent of the calves and 46 percent of the cows died or were missing.

Bart Perrier, a special ranger with the Texas and Southwestern Cattle Raisers

Association, testified that he assisted with a criminal investigation involving Parker.

Throughout the investigation, he learned Parker had sold eighty-three cattle at livestock

auctions in Oklahoma and Texas. During an interview with Parker, Parker admitted he had

sold Sprayberry’s cattle without permission but had used the money from Sprayberry to pay

personal bills and therefore had no money left over to care for the cattle. Parker admitted

overgrazing the property. Perrier testified that Parker admitted selling the cattle and

pocketing the money. A recorded portion of Parker’s statement to Perrier was played for the

juryin which Parker admitted selling over $72,000 of Sprayberry cattle. He said the physical

condition of the cattle was due do his poor management. He said that thirty to seventy cows

had died.

Officer Billy Black with the Arkansas Department of Agriculture also worked on the

investigation. He said that through investigating, after accounting for the cattle recovered

and sold, they presumed 286 animals to be dead. Officer Black visited the pasture where the

cattle were kept and observed and photographed dead cattle in various stages of

decomposition. Those photos were entered into evidence. He said the cattle were trying to

eat cedar trees in order to stay alive; they were not taken care of at all.

Brenda Abbott, a neighbor, had fifty to sixty cattle on her own property but lost only

one calf to pneumonia that year. She watched the Sprayberry cattle deteriorating. She said

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she did not have any problems with drought or dry grass but that if there had not been

enough grass, she would have fed them, provided them hay, or started selling her older

animals.

The jury found Parker guilty of two counts of theft of leased, rented, or entrusted

property with a value of $25,000 or more and one count of cruelty to animals. Parker now

appeals.

For the sake of clarity and constitutionality, Parker’s arguments are summarized and

addressed out of order. We address sufficiency-of-the-evidence questions first because if the

judgment of conviction is not supported by substantial evidence, an appellant may not be

tried again under the principle of double jeopardy. Brown v. State, 347 Ark. 308, 314, 65

S.W.3d 394, 397–98 (2001). Throughout Parker’s brief, he makes points that tend to go to

the sufficiency of the evidence. His second point can best be couched as an assertion that

the circuit court erred in denying his motion for directed verdict due to the existence of a

contract between the parties that contemplated the acts for which Parker is charged. He

contends that the charges against him are no more than a civil breach-of-contract issue, and

are misplaced in a criminal setting. He argues that the the contract supports the position

that he lacked the requisite mental culpability to support the charges.2

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

v. State, 2018 Ark. App. 504, at 1, 560 S.W.3d 509, 511. In reviewing a challenge to the

2
This is a generous summary of Parker’s arguments—not one criminal case was cited
in his opening brief.

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sufficiency of the evidence, the appellate court views the evidence in the light most favorable

to the State and considers only the evidence that supports the verdict. Collins v. State, 2021

Ark. 35, at 4, 617 S.W.3d 701, 704. We will affirm the conviction if substantial evidence

supports it. Shelton v. State, 2017 Ark. App. 195, at 3, 517 S.W.3d 461, 463. Substantial

evidence is that which is of sufficient force and character that it will, with reasonable

certainty, compel a conclusion without resort to speculation or conjecture.

Additionally, circumstantial evidence may provide a basis to support a conviction, but

it must be consistent with the defendant’s guilt and inconsistent with any other reasonable

hypothesis. Collins, 2021 Ark. 35, at 4, 617 S.W.3d at 704. Whether the evidence excludes

every other reasonable hypothesis is for the jury to decide. Dunn v. State, 371 Ark. 140, 142,

264 S.W.3d 504, 506 (2007). A criminal defendant’s intent or state of mind is seldom

capable of proof by direct evidence and usually must be inferred from the circumstances of

the crime. Drennan v. State, 2018 Ark. 328, at 7, 559 S.W.3d 262, 266. Further, the weight

of the evidence and the credibility of the witnesses are matters for the fact-finder. Jimmerson

v. State, 2019 Ark. App. 578, at 6–7, 590 S.W.3d 764, 769.

A person commits the offense of theft of leased, rented, or entrusted property if he

[p]urposely, with a purpose to defraud, or by false pretense takes, carries, leads, drives
away, destroys, sells, secretes, converts, or appropriates in any wrongful manner any
personal property of another person that is leased, rented, or entrusted to the actor;
or [f]alsely reports of his . . . wealth or mercantile credit and by false report
fraudulently obtains possession of personal property or the labor or service of another
person.

Ark. Code Ann. § 5-36-115(a)(1)–(2) (Supp. 2021).

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“A person acts purposely with respect to his or her conduct or the result of his or her

conduct when it is the person’s conscious object to engage in conduct of that nature or to

cause the result.” Ark. Code Ann. § 5-2-202(1) (Repl. 2013). The offense of theft of leased,

rented, or entrusted property is a Class B felony if the value of the property, service, or labor

is $25,000 or more.” Ark. Code Ann. § 5-36-115(g)(1)(A).

A person commits the offense of cruelty to animals if he knowingly subjects any

animal to cruel mistreatment, kills or injures any animal owned by another person without

legal privilege or consent of the owner, abandons an animal at a location without providing

for the animal’s continued care, fails to supply an animal in his custody with a sufficient

quantity of wholesome food and water, fails to provide an animal in his custody with

adequate shelter that is consistent with the breed, species, and type of animal, or carries or

causes to be carried in or upon any motorized vehicle or boat an animal in a cruel or

inhumane manner. Ark. Code Ann. § 5-62-103(a) (Repl. 2016). A person acts knowingly

with respect to his conduct or the attendant circumstances when he is aware that his conduct

is of that nature or that the attendant circumstances exist; or when he is aware that it is

practically certain that his conduct will cause the result. Ark. Code Ann. § 5-2-202(2).

Substantial evidence supports Parker’s convictions for both theft of leased, rented, or

entrusted property and cruelty to animals. Parker admitted that Sprayberry had entrusted

him with its cattle and that Sprayberry also had entrusted him with money to care for the

cattle—nearly $80,000—before the cattle even arrived at his property. He also admitted that

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he knew he was supposed to use that money to feed and care for Sprayberry’s cattle but did

not.

Additionally, he admitted that he did not have Sprayberry’s permission to sell the

cattle, but he sold the cattle anyway, beginning only a month after he had misappropriated

the nearly $80,000 Sprayberry had entrusted to him, upfront, to care for the cattle because

he needed money. Moreover, on the same day Parker sold some of Sprayberry’s cattle because

he had no money to feed them, he falsely stated to Sprayberry that he could handle more

cattle, deceptively convincing Sprayberry to give him even more money to purchase and care

for more cows. Parker further admitted selling over $72,000 of Sprayberry cattle without

permission.

Parker insists the contract between him and Sprayberry dictates the outcome of his

case. He contends that his behavior was contemplated under the contract and, at most, there

was a civil issue between the parties. That, however, was for the jury to determine. Whether

the evidence excludes every other reasonable hypothesis is for the jury to decide. Dunn, supra.

The trier of fact is free to believe all or part of any witness’s testimony and may resolve

questions of inconsistent evidence. Colen v. State, 2022 Ark. App. 148, at 5–6, 643 S.W.3d

274, 279.

Evidence also supports the cruelty-to-animals offense. Parker argues that because the

State did not test the bones, the evidence could not conclusively point to him as the cause

of the animals’ death. However, Dr. Cobb said that when he went to retrieve the cattle, the

ones that were still alive were weak, malnourished, and in very bad shape. Some died while

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being relocated. Parker testified that the physical condition of the cattle was due to his poor

management and thirty to seventy cows died. Parker, at a minimum, knowingly failed to

provide sufficient food and water for the animals in his custody.

Parker’s remaining two arguments are procedural in nature. Of the two, the first was

that he was not “charged under the appropriate section” of the theft-of-property statute. He

says that the offense with which he was charged “created bias.” Appellants, however, do not

dictate the charges filed against them. Such authority belongs solely to the prosecutor. Ark.

Const. amend. 21, § 1; Simpson v. State, 310 Ark. 493, 497, 837 S.W.2d 475, 478 (1992). To

the extent his argument suggests the jury should have been instructed on the lesser-included

offenses, Parker did not ask for or proffer any jury instructions on the matter. Williams v.

State, 2017 Ark. App. 198, at 8, 517 S.W.3d 446, 450–51. In Williams, we wrote:

[I]t is well established that one requesting a jury instruction must prepare and submit
to the court a correct instruction, and where he fails to do so, he is in no position to
argue on appeal that the request should have been granted. The failure to
proffer . . . the proposed instruction precludes this court from considering the issue
on appeal. Appellant never obtained a ruling on this jury instruction issue and failed
to proffer the jury instruction, therefore, this court is precluded from hearing this
argument.

Parker’s final procedural argument is that he was prejudiced by the circuit court’s

alternate-juror substitution after it released one juror for medical reasons during the jury’s

deliberations. He claims the jury failed to follow the circuit court’s instructions “to start

deliberations anew” after the substitution. Parker did not object to the alternate-juror

substitution, nor did he raise any argument regarding the jury’s alleged failure to follow the

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circuit court’s instructions.He did not move for a new trial; thus, this issue is not preserved

for review. See, e.g., Carter v. State, 324 Ark. 395, 403–04, 921 S.W.2d 924, 928 (1996).

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Caddell Reynolds, P.A., by: Blake A. Ray, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Sr. Ass’t Att’y Gen., for appellee.

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