text:
    Norma Herrera RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 13-98-629-CR.
    Court of Appeals of Texas, Corpus Christi.
    Nov. 16, 2000.

      Justino Garza, Jr., McAllen, for Appellant.
    Rene Guerra, Dist. Atty., Theodore C. Hake, Asst. Crim. Dist. Atty., Cheryl Hole, Asst. Dist. Atty., Edinburg, for the State.
    Before Chief Justice SEERDEN and Justices DORSEY and RODRIGUEZ.
   OPINION

Opinion by

Chief Justice SEERDEN.

Appellant Norma Herrera Rodriguez was tried and found guilty of state jail felony theft. She was sentenced by the court to two years imprisonment in the Texas Department of Criminal Justice and ordered to make restitution in the amount of $19,281.53. The court suspended her sentence and placed Rodriguez on community supervision for five years. Rodriguez appeals her conviction by two issues. We affirm.

Factual Background

Norma Herrera Rodriguez worked as a receptionist and bookkeeper for Bob Ga-ston Realty, a real estate sales and development company which also sold and financed residential lots. During the relevant time period, Rodriguez was Bob Gaston Realty’s sole employee.

Rodriguez accepted payments from customers and handled the bookkeeping on their accounts. Payments were usually made in cash, and the money was put in the office cashbox. When Rodriguez received a payment, she made out a sequentially numbered, duplicate receipt, and gave one copy to the customer. The receipt showed the date, account number, amount paid, and the signature or initials of the person receiving the money. Approximately once a week, Rodriguez prepared “tally sheets” showing payments and amounts, and posted the payments made to a computer accounting program. She would then give Bob Gaston the tally sheet, a computer printout of payments, and the cash, and Gaston would deposit the payments.

On one of Rodriguez’s days off, Gaston was preparing the weekly deposit and noticed a customer’s name on the tally sheet without reference to a corresponding amount paid by that customer. He looked in the receipt book to determine the amount paid, and then discovered that there was no money in the cashbox to cover that payment. On further checking, he noticed other receipts that had been written had not been listed on the tally sheets, nor had the money received been turned over to Gaston for deposit.

Gaston asked Rodriguez to explain this discrepancy, but she was unable to do so. Gaston told Rodriguez to take two week’s vacation, and not to return to work until he had completed an audit. Rodriguez never returned to work.

Gaston’s audit disclosed over fifty accounts for which receipts had been completed, but corresponding payments had not been credited to the customers’ accounts. Gaston testified that he did not give Rodriguez his consent to keep these payments. The amount missing was “close to twenty thousand dollars.”

Appellant was charged with theft under section 81.03(a) of the Texas Penal Code, which provides that a person commits an offense if she unlawfully appropriates property with intent to deprive the owner of property. See TexPen.Code Ann. § 31.03(a) (Vernon Supp.2000). Appropriation is unlawful if it is without the owner’s effective consent. TexPen.Code Ann. § 31.03(b) (Vernon Supp.2000). Further, where amounts are obtained by theft pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of the offense. Tex.Pen.Code Ann. § 31.09 (Vernon 1994). A theft offense is a state jail felony if the value of the property stolen is more than $1,500 but less than $20,000. See TexPen.Code Ann. § 31.03(e)(4) (Vernon Supp.2000).

Fatal Variance

By her first issue, Rodriguez contends that the trial court erred in denying her motion for instructed verdict. She contends that the State failed to prove that the grand jury used due diligence in attempting to ascertain elements and facts alleged in the indictment to be unknown to the grand jury, and that this failure created a fatal variance between what was charged and what was proved at trial.

The indictment provided:

THE GRAND JURY ... present in and to said court that NORMA HERRERA RODRIGUEZ hereinafter styled Defendant, between the dates of on or about the 7th day of June A.D., 1995 and March 5, 1996, the exact dates being unknown to the Grand Jury, and before the presentment of this indictment, in Hidalgo County, Texas, did unlawfully, then and there, intentionally and knowingly, appropriate, to wit: acquire and otherwise exercise control over property other than real property, to wit: United States currency, with the exact amount of money appropriated on any given day during that time period also being unknown to the Grand Jury, the owner of said property being Bob A. Gaston;
And all of said amounts were obtained, as alleged; in one scheme and continuing course of conduct, and the aggregate value of the property so appropriated was $1,500.00 or more but less than $20,000 .00.

Rodriguez argues that the grand jury failed to use reasonable diligence to determine the exact amount of money alleged to have been appropriated and the exact dates when these amounts were alleged to have been appropriated.

When the indictment alleges an element or a fact is unknown to the grand jury, the State may prove the element or the fact at trial. See, e.g., Huffman v. State, 775 S.W.2d 658, 662 (Tex.App.—El Paso 1989, pet. ref'd); Ishmael v. State, 688 S.W.2d 252, 258 (Tex.App.—Fort Worth 1985, pet. ref'd). When the indictment alleges an element or a fact is unknown to the grand jury, and at trial the State proves that element or fact, the State has the burden of showing that the grand jury used due diligence in trying to ascertain the fact or element which was alleged to be unknown. Hicks v. State, 860 S.W.2d 419, 424 (Tex.Crim.App.1998); Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App.1991); Ishmael, 688 S.W.2d at 257.

However, if the evidence adduced at trial fails to establish the unknown element or fact, a prima facie showing is made that the element or fact was unknown to the grand jury. Hicks v. State, 860 S.W.2d at 424. Further, where the facts as developed at trial suggest that an investigation by the grand jury could not have helped in ascertaining the unknown fact, there is a prima facie showing of due diligence. Ishmael, 688 S.W.2d at 257.

The State has the burden of proving whether the fact or element was unknown and whether the grand jury utilized due diligence. Matson, 819 S.W.2d at 847 n. 5. As appellant suggests in her brief, if the State is unable to meet its burden of proof, the trial court must find a fatal variance between the indictment and the proof. See Coleman v. State, 918 S.W.2d 39, 41 n. 1 (Tex.App.—Houston [1st Dist.] 1996), aff'd, Ex Parte Coleman, 940 S.W.2d 96 (Tex.Crim.App.1996); Cunningham v. State, 484 S.W.2d 906, 911 (Tex.Crim.App.1972).

The parties to this appeal have not raised an issue regarding whether the Matson and Hicks line of cases is still valid law. In Rosales v. State, 4 S.W.3d 228, 230-31 (Tex.Crim.App.1999), the appellant argued that he was entitled to an acquittal because the indictment alleged that he killed the victim by stabbing her with a knife and by striking her with a hard object, “the exact nature of which is unknown to the grand jury,” and the prosecution failed to prove the grand jury used due diligence in determining the exact nature of the hard object. See Rosales, 4 S.W.3d at 230-31. In the majority’s opinion, the court of criminal appeals held that: (1) the prosecution satisfied the “due diligence” requirement when it proved through one of the grand juror’s testimony that the grand jury was unable to find out what caused the various injuries to the victim; (2) the jury was charged in the disjunctive, which was permissible even though the indictment charged in the conjunctive, and therefore, proof that the victim was stabbed was sufficient; and (3) in light of the court’s decision in Malik v. State, 953 S.W.2d 234 (Tex.Crim.App.1997), which held that the legal sufficiency of the evidence to support a conviction should be measured by the elements of the offense as defined by a hypothetically correct jury charge, “the rule in eases like Hicks is no longer viable.” Rosales, 4 S.W.3d at 231.

Justice Meyers, in his concurring opinion in Rosales, points out that either of the first two reasons were sufficient to decide the case on appeal, and therefore, that portion of the opinion purporting to overrule Hicks was merely dicta. Id. at 234 (Meyers, J., concurring). Subsequent cases construing Rosales have not addressed the effect of the Rosales opinion on the continuing viability of the Matson and Hicks line of cases. See, e.g., Wheeler v. State, No. 06-99-00057-CR, 2000 WL 1779002, *5 (Texarkana December 5, 2000, no pet.). In view of our disposition of this issue, we also express no opinion as to the effect of Rosales.

In this case, the evidence adduced at trial fails to establish either the total amount of money taken or the dates on which Rodriguez took the money. There is nothing in the record indicating the exact dates the funds were taken, nor the exact amount of money appropriated on any given day during the time period alleged, thus a prima facie showing was made that this information was unknown to the grand jury. Hicks, 860 S.W.2d at 424. Further, the evidence showed that the wrongful appropriations could have occurred on any date from the date that the customer made the payment until the date of the next deposit. An investigation by the grand jury could not have helped in ascertaining the exact dates of the appropriations, thus there was a prima facie showing of due diligence. Ishmael, 688 S.W.2d at 257. We overrule appellant’s first issue.

Legal Insufficiency

In her second issue, Rodriguez argues that the trial court erred in denying her motion for instructed verdict because the evidence was legally insufficient to prove an essential element of theft, specifically, that the evidence was insufficient to show that any property was appropriated.

A legal sufficiency review calls upon the reviewing court to view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App.2000). In a legal sufficiency review, the fact finder remains the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. See Barnes v. State, 876 S.W.2d 316, 321 (Tex.Crim.App.1994). The appellate court serves to ensure the rationality of the fact finder, but does not disregard, realign, or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). These standards for review apply equally to direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991).

Rodriguez contends that the evidence is legally insufficient to show that any amount of money was stolen or illegally appropriated from Bob Gaston. Rodriguez argues that the evidence shows only that there was a discrepancy in her bookkeeping insofar as the receipts and the tally sheets failed to correspond. We disagree.

The evidence adduced at trial showed that Rodriguez had access to the missing money and that receipt of and accounting for the money was primarily her responsibility. Over eighty receipts issued by Rodriguez for cash payments were neither entered into the tally sheets routinely kept by the business nor posted to the computer accounting program. The missing payments involved over fifty separate accounts. Nearly all of the accounts that paid in cash were missing at least one payment, but no account had payments missing more than three times. The missing payments occurred for an extended period of time between June 7, 1995, and March 5, 1996. Bob Gaston testified that payments of “close to twenty thousand dollars” received by Rodriguez in cash were missing, and that he had not given Rodriguez permission to take the money.

Moreover, the jury heard other evidence suggesting that the missing money was more than a mere bookkeeping error. When a customer missed a payment, Ga-ston sent a letter advising the customer of the delinquent payment. Letters written and signed by Gaston advising customers of such delinquencies, which he had asked Rodriguez to mail, were found unsent in the bottom of a filing cabinet after Rodriguez left Gaston’s employment.

In the instant case, taking all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found that Rodriguez appropriated the money from Gaston without his consent. We overrule Rodriguez’s second issue.

We affirm the judgment of the trial court.


source: Caselaw Access Project

author: HILL, Justice.

license: Public Domain

text:
    Huey P. HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 09-99-339 CR.
    Court of Appeals of Texas, Beaumont.
    Submitted Aug. 31, 2000.
    Decided Dec. 13, 2000.
    Douglas M. Barlow, Beaumont, for appellant.
    Charles R. Roach, Dist. Atty., Henry Allen Coe, III, Asst. Dist. Atty., Kountze, for state.
    Before WALKER, C.J., BURGESS and HILL, JJ.

      . The Honorable John Hill, sitting by assignment pursuant to Tex. Gov't Code Ann. § 74.003(b) (Vernon 1998).

   OPINION

HILL, Justice.

Huey P. Harris appeals his conviction by a jury for the offense of theft. The trial court assessed his punishment at two years in state jail, suspended and probated for five years, with a $10,000 fine. Harris was also ordered to pay restitution. On appeal Harris argues in two issues that the evidence is legally and factually insufficient to support the jury’s verdict.

We affirm because the evidence is legally and factually sufficient to support the jury’s verdict.

Hams contends in his first issue that the evidence is legally insufficient to support the jury’s verdict. In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. See Ovalle v. State, 13 S.W.3d 774, 777 (Tex.Crim.App.2000).

Douglas Abies, a land representative for Texaco, testified that on October 21, 1996, he received a call informing him that someone might possibly be cutting timber on Texaco land in Hardin County, Texas. According to Abies, when he got at or near the area in question, the first person he talked to was a Mr. MacGinnis. He stated that MacGinnis told him that he was cutting timber for Huey Harris. He said that when MacGinnis said he had no deed showing ownership in Harris, he asked MacGinnis if he had a map. He indicated that MacGinnis produced a map that he said he received from Harris, a map that showed areas marked in yellow that MacGinnis was supposed to cut. Abies mentioned that some of the lots that were marked in yellow belonged to Texaco. He testified that Charles MacGinnis and Mac-Logging, MacGinnis’s company, while working for Harris, cut timber on lots 24, 25, 26, and 27 of the Nancy Fuller Survey. Abies said that those lots belonged to Texaco.

Charles MacGinnis testified that Harris had told him to cut everything in yellow that was on his map. He said that the next day after Abies had appeared at his job site, Abies met with Harris at the site. MacGinnis indicated that subsequently he stopped the work three times, then resumed it after Harris told him to continue. He said that he hauled away the timber and paid Harris for it. MacGinnis said that according to his map some of the timber that was on the four lots owned by Texaco was cut by his saw hands. He indicated that Texaco had never given him permission to cut there and that Harris had claimed he was the owner of the timber and the land.

Kenneth Parker, a crew chief for a survey team, testified that timber was cut from lots 24, 25, 26, and 27 of the Nancy Fuller survey. He said that when he was there on October 29, 1996, he saw timber that appeared to have been recently cut.

We hold that the evidence is legally sufficient to support the conviction. Harris argues that the evidence is insufficient because there was a bona fide dispute as to the ownership of the timber that was actually cut. While there may have been a factual dispute as to whether any timber was cut from Texaco’s land, there was no bona fide dispute as to the ownership of any timber that was cut from Texaco’s land. Harris relies on several cases, including Hann v. State, 771 S.W.2d 731 (Tex.App.—Fort Worth 1989, no pet.); Bryant v. State, 627 S.W.2d 180 (Tex.Crim.App.1982); Cox v. State, 658 S.W.2d 668 (Tex.App.—Dallas 1983, pet. ref'd); Weatherby v. State, 738 S.W.2d 83 (Tex.App.—Eastland 1987, pet. ref'd); Roper v. State, 917 S.W.2d 128 (Tex.App.—Fort Worth 1996, pet. ref'd); Gornick v. State, 947 S.W.2d 678 (Tex.App.—Texarkana 1997); and Allsup v. State, 62 S.W. 1062 (Tex.Crim.App.1901). We have examined all of these cases and find most distinguishable because in each of those cases there was a bona fide dispute as to the ownership of the property that was being stolen. In this case there was no bona fide dispute as to the ownership of Texaco’s land nor the timber that was cut from it.

Two of the cases Hands cites were not determined on the basis of a bona fide dispute as to ownership of property. In Weatherby, the court held that the evidence was insufficient to support the jury’s verdict in a theft case. Weatherby, 738 S.W.2d at 84. Weatherby, a feed lot owner, sold the complainant’s cattle, with his consent, and received the proceeds as per the agreement. Id. at 85. When the checks from the buyer had cleared and it became time for Weatherby to pay the complainant, Ms business checking account had become overdrawn. Id. Consequently, Weatherby’s checks to the complainant were returned marked “Insufficient Funds.” Id. The State indicated that tMs was not a theft by check case. Id. The court, in holding that the evidence was insufficient, noted that the evidence con-cermng Weatherby’s intent was circumstantial and did not rule out all other reasonable hypotheses shown by the evidence. Id. at 86. We do not find tMs holding to be inconsistent with our holding in this case. Further, we note that circumstantial evidence is no longer insufficient merely because it does not rule out all other reasonable hypotheses. See Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991).

In Roper, the complainant had an agreement that Roper would sell some hay on his behalf and pay him the proceeds in cash after the deduction of wages that the complainant might owe Roper. Roper, 917 S.W.2d at 131. Roper testified that he thought he had the permission to keep the money until the complainant asked for the extra money, if any, that was not part of the back wages that the complainant owed him. Id. The complainant demed that Roper was entitled to any more than $100 of the $1600 he had received for the hay. Id. The court held that this was a civil contract dispute involving a contract, the terms of which were unclear. Id. at 132. The court noted that theft convictions that arise from otherwise civil contractual disputes may warrant reversal for insufficient evidence where there is no evidence supporting the requisite criminal intent. Id. We find this case distinguishable because the case at bar does not involve a civil contractual dispute between Harris and Texaco. We overrule Harris’s contention as presented in issue one.

Harris urges in his second issue that the evidence is factually insufficient to support the jury’s verdict. In determining whether the evidence is factually sufficient to support the conviction, we must determine whether a neutral review all of the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000).

Gary Spears, an employee of the Hardin County Sheriffs Office, testified that he went out “to the location” in response to a report of alleged illegal timber cutting. He said he requested and was shown a deed that showed partial ownership in Harris of some property in the survey. He indicated that he was not able to determine from looking at Harris’s deed whether the property, from which the timber was being cut, was the property described in the deed or some other property, but that it was in the general area.

Billy Tomlinson, who was in the oil field service business and trucking business, testified that he accompanied Douglas Abies out to an area in Saratoga where there was a report of timber cutting on Texaco land. He said that when Harris and Abies had a discussion out on the property, Harris said it was his land and designated which part. He acknowledged that he never saw Harris out on the land with a chain saw. He stated that at no time did Harris acknowledge doing anything wrong. He indicated that Harris told him that he had the property surveyed, but did not tell him that the property was flagged.

Douglas Abies testified that it was possible that there were previous cuttings on Texaco tracts 24, 25, 26, and 27 of the Nancy Fuller Survey, from years ago. ,He acknowledged that on the day he was on the property he did not see Harris, MacGinnis, or anyone else cutting “on this tract” nor did he see such activity on any later date.

Charles MacGinnis testified that Harris told him that all of Texaco’s land had been cleared previously. He related how Harris had taken his lead saw hand, Lynn Marshall, and marked the land or showed him where all the lines were. He indicated that he had walked some of it himself. He stated that there was no big conspiracy between him, Harris, and Lynn Marshall to cut Texaco’s timber. He testified that Harris told Texaco that he had the deeds to the land.

Virgil Hussey, Jr., a correctional officer for the Texas Department of Criminal Justice, Institutional Division, who cruises timber on the side, testified that he went out on behalf of Harris to flag the land prior to it being cut. He said that he saw evidence of a surveyor having been on the property before he got there. He indicated that Harris had told him that he had previously surveyed the land.

Tim Parker, a forestry consultant, showed the jury pictures of some timber that was uncut, as well as some that had been cut years before. He showed pictures that showed flagging on the land. He also spoke of observing flagging when he went to the location two years after the cutting was done. He stated that there was newer flagging than what Texaco’s surveyors might have done. He concluded that Virgil Hussey put some of the flagging up, that Hussey had flagged it twice. Parker concluded, based upon Harris’s tickets and mill tickets, that Harris had been shorted about eight loads.

Gary Lynn Marshall was part of MacGinnis’s crew who was cutting timber. He said he saw flags out on the property. He said that Harris showed him the property lines the first day he went out to the property and met him. He recounted that Harris had told him that Texaco owned some land in certain places, although he did not specify exactly where. Marshall emphasized that Harris stressed that he stay off of Texaco’s land and to stay off of the neighboring government land. He stated that to his knowledge his cutters did not go across the property line, but that it was possible that some of his hands did. He indicated that even when Texaco showed up, he thought that he and his crew were cutting in the right place, but that they were cutting where they were told. He testified that no one told him to go down there and cut that timber. He urged that it was easy to miss the property line, but that he could not explain how he and his crew missed it. He indicated that there was a possibility that it was his fault the timber was cut.

Huey Harris testified that he showed the property lines to Gary Lynn Marshall. He said that he never highlighted a map in yellow and gave it to anyone. He related that he never saw any of his crews on Texaco property. He indicated that if anyone cut timber on Texaco property that he did not get paid for it. He stated that every time he talked to Texaco he was in the right. Harris testified that part of Texaco’s land had previously been clear cut, but that he was not saying that all of it was. He acknowledged that he did not know if somebody cut over some lines. He also said that he was cutting his own timber, that he still believed that he was cutting his own timber. He indicated that he knew the boundary between his property and Texaco’s.

We conclude that the evidence is factually sufficient to support the verdict because the proof of guilt is not so obviously weak as to undermine confidence in the jury’s determination, and the proof of guilt is not greatly outweighed by contrary proof. We overrule Harris’s contention contained in issue two.

The judgment is AFFIRMED.


author: RITA W. GRUBER, Judge.

text:
    2009 Ark. App. 437
    ROBERTS CONTRACTING COMPANY, INC., Appellant, v. VALENTINE-WOOTEN ROAD PUBLIC FACILITY BOARD and Pulaski County, Arkansas, Appellees.
    No. CA 08-751.
    Court of Appeals of Arkansas.
    May 27, 2009.

      Jack East, III, Little Rock, for appellant.
    Mike Wilson, Jacksonville, for appellee.
   RITA W. GRUBER, Judge.

I;This case involves a sewer system that was not fully completed. In June 2004, appellant Roberts Contracting Company, Inc. (Roberts), agreed to build and complete a sewer system for appellee Valentine-Wooten Road Public Facility Board (VWR) by April 12, 2005. Although VWR agreed to obtain all necessary easements, it did not resolve disputes with two landowners until very late in the project. Those issues, along with wet weather and a contract dispute between the project engineer, Bond Consulting Engineers, Inc., and Pulaski County, delayed construction. More than a year past the original completion date, with at least one extension granted, Roberts walked off the job and VWR refused to pay all of Roberts’s last bill. The sewer system was not operational. Roberts sued |2VWR for breach of contract, and VWR filed a counterclaim for damages caused by Roberts’s failure to complete and repair the system. After a bench trial, the circuit court denied Roberts’s claim on the ground that it had not substantially performed, and awarded liquidated damages for the delay to VWR. Roberts then filed this appeal, and VWR cross-appealed. The issues we must decide are whether Roberts substantially performed; whether Roberts may recover for the work it did complete; whether VWR was entitled to liquidated damages; and whether the trial court awarded liquidated damages for the proper period of time. We hold that, although Roberts did not substantially perform, it is entitled to appropriate compensation from VWR, and that the court did not err in awarding VWR liquidated damages.

I. Facts and Procedural History

The contract provided that VWR would pay $2,088,166 for Roberts to build the sewer system, which was to be accepted by the City of Jacksonville, and that, if Roberts did not complete the work on time, it would pay $400 per day until completion. Roberts received an extension from VWR until October 20, 2005, but did not finish the job by then. By fall 2005, Roberts had installed and tested the sewer lines, and had installed five pump stations and the force-main pipes and related equipment. The disputes over the easements across the Pickens and Harris properties, however, had frustrated completion. The pump station on the Pickens property still lacked power, and Mr. Harris had damaged a force main on his property that Roberts had, at VWR’s direction, placed outside the easement. The |sPickens easement was finally settled in January 2006, but the Harris dispute was not resolved until May 2006. Further, Bond Consulting Engineers stopped its on-site supervision of the job in December 2005 after a dispute with Pulaski County over payment. The parties disagree about whether VWR’s failure to fulfill its obligations hindered Roberts’s ability to perform and whether VWR agreed to another extension until May 1, 2006. Roberts left the job at this time.

On May 16, 2006, VWR refused to pay Roberts the entire amount of a bill on the ground that it had not completed all of the work. The pay estimate indicated that retainage (from work already performed and partially paid) at that time was $104,408.30, and that Roberts had earned an additional $57,532.50, which had not yet been paid. Roberts refused to perform further and asserted that the purportedly incomplete work was not within the scope of the contract. It also claimed that its ability to perform had been hampered by VWR’s failure to perform its obligations. A video inspection performed by Jacksonville Waste Water Utility in November 2006, more than a year after the lines had been successfully tested, revealed numerous defects and debris in the sewer system. Roberts took the position that the problems in the lines had developed during the year-long interval between its completion of the lines and the taping.

Roberts sued VWR for breach of contract, alleging that it had substantially performed, and seeking $162,502.80. Roberts also sued Pulaski County, which was a party to the ^contract. Pulaski County was dismissed as a party and that portion of the case has not been appealed. VWR denied that Roberts had substantially performed and filed a counterclaim requesting actual damages for Roberts’s failure to complete the project. According to VWR, Roberts failed to perform the following contractual obligations: installing a working SCADA system for each pump station; adequately testing its work; completing the sewer system so that it could be accepted by the City of Jacksonville; and, after completing the system, submitting “as-built” drawings. VWR also asked for liquidated damages for delays caused by Roberts.

At trial, Roberts introduced the testimony of Cotton Roberts, the company’s president, who prepared the bid; Leigh Ann Pool, a program manager with Central Arkansas Planning and Development District, Inc.; Bradley Roberts, Cotton’s son, who works for Roberts and supervised this project; Thomas Bond, with Bond Consulting Engineers; Gregory Wood, an inspector for Bond; and Michael Bolin, a civil engineer. At the conclusion of its case, Roberts moved to amend the pleadings to conform to its proof of damages in the sum of $177,390.80. The court granted this motion. VWR presented the testimony of Mark Wilkins, a civil engineer with the North Little Rock Sewer Department; Robert Williams, the engineering construction manager for the Jacksonville Waste Water Utility; Josh Minton, the project engineer with Bond; and Frank Hood, VWR’s chairman. In rebuttal, | ¿Roberts presented the testimony of Brad Roberts.

II. The Circuit Court Ruling

The trial court issued a letter opinion finding that Roberts had not substantially completed the project; that the sewer system was not operational; that VWR had not yet received any benefit from the project; and that Roberts would not suffer forfeiture because it had been paid for the part of the job it had completed. The court noted that the pumping stations had not been tested or turned on because electricity was not provided to them, and that, by the “plain language” of the contract, Roberts had the responsibility for providing electricity. The court stated that Roberts was also required by the contract to provide the SCADA system. It further found that the contract required Roberts to provide the as-built drawings, although, if everything else had been accomplished, the court said that it would have found that Roberts had substantially complied. The court declined to determine whether clean-up was complete, noting the conflicting testimony on that issue. Because VWR offered no admissible evidence on the amount of damages required to repair the sewer system, the court declined to award actual damages to VWR. The court said that it would, however, award liquidated damages from May 1, 2006, which it found was the end of the final extension, to August 24, 2006, when Roberts filed this lawsuit.

The court entered a judgment incorporating these findings and denying Roberts’s | (¡request for damages because it had not substantially completed the project. In the judgment, the court directed Roberts to provide the SCADA system within 90 days, upon which it would be entitled to receive the contract price, and ordered it to provide VWR with as-built drawings. The court declined to rule on the clean-up work, or to award actual damages to repair the system to VWR, because the evidence was insufficient. The court also made the following findings:

[VWR] is entitled to liquidated damages on its counterclaim against [Roberts] in the sum of $46,400. [Roberts] seeks to set-off the liquidated damages awarded to VWR based upon progress payments owed to them. I have found that [Roberts] breached its contract with [VWR] by failing to complete the sewer project. When [Roberts] breached its portion of the contract, [VWR] was entitled to cease all of their contractual obligations to [Roberts] such as payments. Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). The payments not required to be remitted by [VWR] would include the retainage and the $57,532.50 approved as evidenced by Plaintiffs Exhibit 22 (last page). Under a theory of unjust enrichment, [Roberts] seeks to recover funds withheld by [VWR] for work not yet completed. Brill’s Arkansas Law of Damages § 17-3 provides that “even if a contractor has not substantially performed, and even though he is the breaching party, he may be able to recover for the value of partial construction.” (Emphasis added.) In this case, I find that [VWR] will not be unjustly enriched if they are not required to pay for construction partially completed by [Roberts]. As [VWR] demonstrated, these payments served as retainage to ensure that 1) [Roberts] had money available to complete the project and 2) the work was actually completed. [VWR] will not be unjustly enriched because they are faced with completing a sewer project that has remained stagnant for months. The testimony was that, in addition to completing the sewage system, maintenance and repair work would have to be conducted in order to have the sewer system in working order.

These appeals followed.

III. Standard of review

|7In civil bench trials, the standard of review on appeal is whether the trial court’s findings were clearly erroneous or clearly against a preponderance of the evidence. Rooke v. Spickelmier, 2009 Ark. App. 155, 314 S.W.3d 718. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a firm conviction that a mistake has been committed. Id.

IV. Direct appeal

A. Substantial Performance

Roberts first argues that the trial court’s finding that it did not substantially perform its obligations under the contract was clearly erroneous, even though the system was not fully complete and operational. When a contractor is in default by having failed to complete the contract, he can recover in spite of his breach if his performance was sufficiently substantial. Cox v. Bishop, 28 Ark.App. 210, 772 S.W.2d 358 (1989). If omissions or deviations from the contract are inadvertent or unintentional; are not due to bad faith; do not impair the structure as a whole; and are remediable without doing material damage, substantial performance permits the contractor to be compensated, with deductions from the contract price. Id. “The doctrine of substantial performance is intended to protect the right to compensation of those who have performed in all material and substantive particulars, so that their right to compensation may not be forfeited by reason of mere technical, inadvertent, or unimportant omissions or defects.” 15 Samuel Williston, A Treatise on the Law of Contracts § 44:52, at 220-21 (4th ed.2000). The Restatement (Second) of Contracts § 241 (1981) ^characterizes this question as whether a failure of performance was “material.” A material breach is a failure to perform an essential term or condition that substantially defeats the purpose of the contract for the other party. AMI Civ. 2427 (2005).

Substantial performance cannot be determined by a mathematical rule relating to the percentage of the cost of completion. Cox, supra. There is no precise formula to use, Roberts & Co. v. Sergio, 22 Ark.App. 58, 733 S.W.2d 420 (1987), and the issue of substantial performance is a question of fact. Cox, supra. In determining whether performance is substantial, the following considerations are significant: (1) the extent to which the injured party will be deprived of the benefit that he reasonably expected; (2) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (3) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (4) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstances, including any reasonable assurances; and (5) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. Id.; see also 8 Arthur L. Corbin, Corbin on Contracts § 36.1 (rev. ed.1999).

Roberts challenges the trial court’s finding that VWR derived no benefit from the work that Roberts completed. It also argues that it was not required to arrange for permanent electrical power to the pump stations and asserts that VWR was obligated to make those arrangements, including the one on the Pickens property. As for the other unfinished work, | ^Roberts asserts that its other failures — not installing the SCADA system; not repairing the cut in the force main caused by Mr. Harris; not providing as-built drawings; and not repairing the problems disclosed by Jacksonville’s video — did not render its performance less than substantial. It was undisputed that the gravity lines, manholes, and force mains (except for the one damaged by Mr. Harris) passed all tests required by the contract in the fall of 2005, a year before the video tape raised questions about the quality of Roberts’s performance. It was undisputed that the specifications required a SCADA-system contractor to perform that installation; that Jacksonville wanted a SCADA system purchased and installed by the manufacturer with whom it had previously dealt; and that none of the SCADA-system funds held by VWR had been spent. It was also undisputed that the manufacturer of the pump stations had already been paid and was obligated to perform the tests on them, once the stations got permanent electrical power.

Roberts also urges us to recognize that some major delays were caused by VWR’s failure to settle the easement across the Harris property before May 2006 or to resolve the Pickens dispute before January 2006. We note that paragraph 5.1.2 of the contract expressly required VWR to obtain all land and rights-of-way necessary for the project before Roberts started work, but VWR failed to do so. Additionally, paragraph 7.1.5 of the contract, which stated that the engineer would provide a qualified resident observer to be on site at all times when the contractor was working, was not fulfilled after Bond stopped its on-site inspection in December 2005 because of a dispute with Pulaski County.

|10g. Breach of Contract/Interpretation

Before addressing whether Roberts’s purported breaches of the contract were material or sufficient to prevent its performance from being considered substantial, it is necessary to decide whether Roberts actually breached the contract. Roberts asserts that some of its purported omissions, especially arranging for permanent electrical power, were not even required by the contract.

An analysis of a breach-of-contract claim based upon the theory of substantial performance must begin with a determination of the contract’s terms. 15 Samuel Williston, A Treatise on the Law of Contracts § 44:54, at 228. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Taylor v. George, 92 Ark.App. 264, 212 S.W.3d 17 (2005). It is a well-settled rule that the intention of the parties to a contract is to be gathered, not from particular words and phrases, but from the whole context of the agreement. Wal-Mart Stores, Inc. v. Coughlin, 369 Ark. 365, 255 S.W.3d 424 (2007). The court is to give great weight to the construction of the contract given to it by the parties, Synergy Gas Corp. v. H.M. Orsburn & Son, Inc., 15 Ark.App. 128, 689 S.W.2d 594 (1985), and it may look to the conduct of the parties to determine their intent. Taylor, supra. When a contract is free of ambiguity, its construction and legal effect are questions of law for the court to determine. State Farm Fire & Cas. Co. v. Amos, 32 Ark.App. 164, 798 S.W.2d 440 (1990). Language is ambiguous if there is doubt or uncertainty as to its meaning and it is fairly susceptible to more than one equally reasonable interpretation. Nash v. Landmark Storage, 1LLC, 102 Ark.App. 182, 283 S.W.3d 605 (2008). The determination of whether ambiguity exists is ordinarily a question of law for courts to resolve. Magic Touch Corp. v. Hicks, 99 Ark.App. 334, 260 S.W.3d 322 (2007).

The trial court concluded that the contract unambiguously required Roberts to provide the SCADA system and the electrical power, and that Roberts’s failure to perform both of these obligations rendered its performance less than substantial. As for the permanent electrical power, we disagree. We conclude that this portion of the contract was ambiguous and the parties’ course of performance demonstrated that they intended for VWR to be equally responsible with Roberts in arranging for permanent power. Taylor, supra.

Paragraph 3.1 of the contract, which set forth Roberts’s responsibilities, provided in subparagraph 3.1.1:

It is understood that unless otherwise specifically stated in the contract documents, the contractor shall provide and pay for all materials, labor, tools, equipment, water, light, power, transportation, superintendence, temporary construction of every kind, and all other services and facilities of every kind whatsoever necessary to execute, complete, and deliver the complete project within the specified time.

Brad Roberts testified that he interpreted the contract as simply requiring Roberts to provide temporary power to the pump stations. Roberts’s expert witness, Michael Bolin, testified that “it’s always the owner who provides the power....” Although Josh Minton testified that the responsibility to provide power lay with Roberts, the parties’ course of performance showed a joint effort to obtain power. Indeed, the parties acted as though the responsibility lay with both sides and required mutual cooperation. In the end, because of misunderstandings and 112miscommunication, electrical power to the remaining pump stations was not completed. We therefore hold that the trial court’s finding that Roberts was solely required to provide the permanent electrical power was clearly erroneous.

VWR does not dispute that Roberts completed at least 90% of its work. By November 2005, Roberts had installed and tested the pipe and manholes required by Schedule I of the contract. It also installed the force-main pipe and related equipment, as well as five pump stations, set forth in Schedule II. We note that VWR approved the May 16, 2006 pay estimate reflecting that Schedule II of the contract was 100% complete, except for connecting to the Jacksonville pump stations, which (the evidence showed) Jacksonville was not yet ready to complete. The evidence demonstrated that Roberts’s failure to complete the testing was, at least partially, excused by VWR’s failure to timely acquire all of the necessary easements and to help get electrical power to the other pump stations. A property owner and VWR board member, Mr. Harris, dug up and with a chain saw damaged a force main that was installed where VWR and Bond had instructed Roberts to place it, outside the easement. Additionally, there also was no permanent power to the pump station on the Pickens property, where VWR failed to secure the easement until long after it was needed. As a result, neither the force main nor the pump station could be tested. In light of VWR’s failure to fully perform its own obligations, we cannot say that Roberts materially breached the contract in regard to permanent electrical power.

Although the SCADA system was an “alternate bid,” which Brad Roberts stated was | ^something that Roberts would “help” VWR with, there was testimony that the parties understood that it was Roberts’s responsibility to purchase the system for installation, and the total bid awarded included this purchase item. The trial court, therefore, did not clearly err in ruling that the SCADA system was Roberts’s responsibility. But it was undisputed that the SCADA system was not essential to the sewer system’s operation. The pump stations could be monitored manually. We therefore cannot agree that the SCADA system’s omission was a material breach or rendered Roberts’s performance less than substantial. Roberts conceded at oral argument, however, that VWR was entitled to recover from Roberts $9750, the amount of the system’s price increase that occurred during the delay. This concession filled the gap in VWR’s proof on the cost to VWR of completing the contract on this issue. As discussed below, that amount will be off-set against the damages awarded to Roberts. VWR will be responsible for arranging the SCA-DA system’s installation.

Although Roberts was required to supply the as-built drawings, its only role in that process was to serve as a conduit. Bond Consulting Engineers was to prepare the drawings, and Roberts was to then deliver them to VWR. The trial court found as much in its final order. We therefore hold that no material breach occurred on the as-built drawing.

Nevertheless, we cannot say that the trial court’s finding of fact that Roberts did not substantially perform is clearly erroneous. The court found that Roberts breached the' contract because it did not complete the project. When Roberts walked off the job, VWR did not yet have the benefit it expected, a working sewer system. This is the first significant consideration determining substantial performance. Cox, 28 Ark.App. at 213, 772 S.W.2d at 359. “[A] high degree of difference in form and usefulness may be decisive on the question of substantial performance .... ” 8 Arthur L. Corbin, Corbin on Contracts § 36.7, at 347. We conclude that this consideration carries great weight in this case. A working sewer system was the essence of this contract. Unlike in the City of Whitehall v. Southern Mechanical Contracting, 269 Ark. 563, 599 S.W.2d 430 (1980), this case was not about which party was legally responsible for problems and costs incurred along the way to an operational sewer system. This sewer system was more like a building that — though much work had been done on it — could not be occupied and used when the contractor abandoned the job.

Roberts throwing its hands up and leaving the project is another significant consideration. Cox, 28 Ark.App. at 213, 772 S.W.2d at 360. While VWR fell short in cooperating on permanent power, Roberts walked out rather than continuing to push to resolve this important issue. There was no likelihood of Roberts curing, another factor that weighed against a finding of substantial performance. Cox, 28 Ark. App. at 213, 772 S.W.2d at 359. Next, because Roberts was paid for almost all of its work along the way — more than 1.8 million dollars — the scope of the contractor’s potential forfeiture was relatively small. Id. The remaining factor pointed both ways: hypothetically, VWR could have been compensated for the lost benefit with cost-of-completion and cost-of-repair damages; in this ease, however, VWR’s proof on those issues failed. Without question, Roberts’s work on the sewer system was considerable. Based upon the record as a whole, and the settled law about the significant | ^considerations in determining substantial performance, however, we are not left with the definite and firm conviction that the circuit court erred in finding no substantial performance.

C. Value of the Benefit

While we agree that Roberts did not substantially perform, we do not agree that it can have no recovery:

Even if the contractor has not substantially performed, and even though he is the breaching party, he may be able to recover for the value of partial construction. Relying on the restitutionary principle of unjust enrichment, the breaching contractor may recover for the value of the benefit received and retained by the owner.

1 Howard W. Brill, Arkansas Law of Damages § 17:3, at 296 (5th ed.2004); accord Pickens v. Stroud, 9 Ark.App. 96, 658 S.W.2d 146 (1983). “If the defective performance, though less than ‘substantial,’ has conferred benefits on the defendant in excess of the defendant’s injury, the defendant may be under a quasi-contractual duty to pay that excess.” 8 Arthur L. Corbin, Corbin on Contracts § 36.1, at 334; see also Restatement (Second) of Contracts § 374 (1981).

As we have noted, VWR still has possession of the retainage, plus the earned-but-unpaid funds, as well as the installed pipe, manholes, force-main pipe and equipment, and pump stations. Roberts’s labor and materials have been incorporated in VWR’s easements. Roberts, therefore, should be compensated for the work it performed that benefitted VWR. See 8 Arthur L. Corbin, Corbin on Contracts § 36.11. At the conclusion of Roberts’s case, the trial court granted its motion to amend the pleadings to conform to its proof of damages, in the sum of $177,390.80. Thus, Roberts proved the amount of damages to which it would have been entitled if it had substantially performed, which did not occur. Our next question, therefore, |16must be whether Roberts’s evidence was sufficient to establish the value of the benefit received and retained by VWR. We hold that it was.

“One of the primary ways to measure the benefit to the landowner is the market value of the contractor’s labor and materials.” Dan B. Dobbs, Law of Remedies § 12:20(2), at 461 (2nd ed.1993). In some situations, an unjust enrichment award may be based upon the payment due under the contract. Citing Dobbs, our supreme court has held that, if the party against whom an unjust enrichment claim is brought has not shown that the value of the benefit conferred is less than the payment called for by the contract, the contract price is some evidence of the value of the benefit conferred, and it is not error to base the unjust enrichment award on the contract price. Woodhaven Homes, Inc. v. Kennedy Sheet Metal Co., 304 Ark. 415, 803 S.W.2d 508 (1991). This view is set forth in 8 Arthur L. Corbin, Corbin on Contracts § 36.11, at 374:

In proving the reasonable value of a part performance, the contract price or rate of payment is nearly always admissible in evidence on the issue of value. If contract price is evidence of reasonable value, then contract price less damages will not greatly differ from reasonable value less damages.

VWR failed to establish its cost-of-completion-and-repair damages at trial. It has not cross appealed the trial court’s ruling rejecting its proffered evidence on these issues. And it offered no evidence that the value of the benefit conferred by Roberts’s completed work was less than the amount billed. The trial court reasoned that Roberts should not recover because VWR would incur costs in some amount to repair and complete the system. This reason is undoubtedly true, but not dispositive. VWR failed to quantify its injury. In the absence of any proof on VWR’s side of the scale, Roberts’s contract-based proof of the reasonable value of its l17services must prevail. We therefore hold that Roberts is entitled to the value of the work it did but for which it was not paid. As Roberts proved at trial, this amount was $177,390.80.

D. Liquidated Damages

Roberts further argues that the trial court erred in awarding VWR liquidated damages as compensation for the delay. We disagree. “The general rule governing liquidated damages is that an agreement in advance of breach will be enforced if the sum named is a reasonable forecast of just compensation for the injury, if the harm is difficult or incapable of accurate estimation.” Phillips v. Ben M. Hogan Co., 267 Ark. 1104, 1108, 594 S.W.2d 39, 41 (Ark.App.1980) (citing Hall v. Weeks, 214 Ark. 703, 707, 217 S.W.2d 828, 830 (1949)). Whether a provision is actually a liquidated-damages stipulation or a penalty is a question of fact. Id.; McIlvenny v. Horton, 227 Ark. 826, 302 S.W.2d 70 (1957). In American Bank & Trust Co. v. Langston, 180 Ark. 643, 22 S.W.2d 381 (1929), the supreme court upheld a liquidated-damages provision in a contract to construct a sewer system for an improvement district because the damages were uncertain and the amount stipulated was not unreasonable. VWR introduced sufficient evidence to show that Roberts was at least partially responsible for the delay and that it quit in May 2006. Accordingly, we cannot say that the trial court erred in upholding the liquidated-damages provision. As with the SGADA-system award, VWR may offset the liquidated-damages award against the amount it owes Roberts.

V. Finality of the Judgment

In its last point, Roberts argues that paragraphs 3 and 4 of the trial court’s decision, | mwhich provided that VWR could file further actions if Roberts did not provide the SCADA system and as-built drawings, violated the principles of finality of judgments. In light of our resolution of those two issues, we need not address this argument. Installing the SCADA, partly at Roberts’s expense, is now up to VWR. And VWR no longer needs Roberts to be the conduit for the as-built drawing from Bond Consulting Engineers.

Roberts also asserts that paragraph 5 of the decision, in which the court declined to rule on final clean-up work, ran afoul of Rule 13(a) of the Arkansas Rules of Civil Procedure. This Rule requires that a pleading shall state as a counterclaim any claim, which at the time of the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Morsy v. Deloney, 92 Ark.App. 383, 214 S.W.3d 285 (2005). Although we agree that VWR’s claim for final clean-up work was required to be brought in a compulsory counterclaim pursuant to Rule 13(a), we see no finality problem. VWR failed to meet its burden of proof on what the final clean-up work will cost. We construe this part of the trial court’s decision as one on the merits against VWR.

VI. Cross-appeal

In its cross-appeal, VWR argues that the trial court erred by starting the liquidated-damages period too late and ending it too soon. VWR first argues that liquidated damages should have started on October 20, 2005, the last day of the only contract extension VWR says it granted, instead of May 1, 2006. We disagree. There was evidence in the record that the parties informally agreed to extend the date of completion to May 1, 2006. Josh Minton sent a letter to Brad Roberts on May 2, 2006, stating that “the deadline for completion of this 119project was May 1.... ” That date was also stated in a “punch-list” letter from Minton to Roberts as the final date that Roberts could finish numerous items that did not require power at the pump stations.

The circuit court’s decision on the end date for liquidated damages was not reversible error either. The parties’ contract specified no end date for the liquidated-damages period, perhaps because VWR and Roberts assumed that all the work would be done at some point by someone. It never was. The liquidated damages must stop accruing at some point or they will become a penalty, which our law does not allow. McIlvenny, supra. The general rule requires these damages to be a “reasonable” forecast of just compensation. Phillips, supra. And when parties omit a necessary period of time from any contract, the law implies a reasonable period of time in the contract. See generally, AMI Civ. 2423 (2006). Ending the period of liquidated damages on the date that this action was filed was reasonable. It was consistent with the policy of encouraging parties to settle their disputes in a timely manner. Unlike in the usual case, no replacement contractor was engaged to complete this job. We reject VWR’s argument that it was entitled to liquidated damages through the date of trial. When both parties shifted their energies into litigation instead of completing the sewer system, it was reasonable to stop the clock on liquidated damages. We therefore cannot say that the trial court’s findings on this issue were clearly erroneous.

VII. Conclusion

In the direct appeal, we affirm the trial court’s finding that Roberts was required to provide the SCAJDA system; award VWR $9750 for the SCADA system’s price increase; affirm |20the trial court’s finding that Roberts did not substantially perform; reverse the trial court’s denial of Roberts’s claim for $177,390.80; and affirm the trial court’s award of liquidated damages to VWR. The awards to VWR may be set off against the award to Roberts. On the cross-appeal we affirm the trial court’s determination of the reasonable period for liquidated damages. Accordingly, we remand this case for the entry of a judgment in keeping with this decision.

Affirmed in part, reversed and remanded in part, on direct appeal; affirmed on cross-appeal.

GLOVER and MARSHALL, JJ., agree.

      . The contract provided that retainage would be released upon acceptance of the Certificate of Substantial Completion.

      . The SCADA system electronically monitors a pump station. It does not operate it. Roberts bid $12,650 for each of the five SCADA units to be installed, for a total of $63,250.

      . Though the trial court referred to Roberts’s efforts under the contract as not having "substantially completed” the project, the precedent discusses similar efforts in terms of substantial performance.

      . VWR has not appealed from the trial court's ruling on its failure to establish actual damages.


author: WAYMOND M. BROWN, Judge.

text:
    2009 Ark. App. 466
    Michael E. JACKSON, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1495.
    Court of Appeals of Arkansas.
    June 3, 2009.

      Paul Petty, Searcy, for appellant.
    Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for ap-pellee.
   WAYMOND M. BROWN, Judge.

I,At a bench trial, Michael E. Jackson was convicted of internet stalking of a child and was sentenced to two years’ imprisonment, followed by three years’ suspended imposition of sentence. Jackson challenges the sufficiency of the evidence to support the conviction, claiming that the State failed to show that he believed that he was chatting online with a fourteen-year-old girl. He also argues that the trial court erred in admitting transcripts of the conversations between him and the police officer posing as a fourteen-year-old, contending that the conversations were inadmissible hearsay and were not properly authenticated. We affirm.

In October 2007, Detective Brian Williams of the Conway Police Department posed as fourteen-year-old Misty Webb while using the Yahoo Instant Messenger program. The |2terms and conditions of the program require users to be over the age of eighteen. To circumvent this requirement, Williams listed Webb’s age as 100. On October 15, 2007, Webb received a message from Jackson, who was using the name “James Smith.”

During Williams’s testimony at trial, the State sought to introduce transcripts of the conversations between Webb and Jackson. Jackson objected, arguing that the transcripts were inadmissible hearsay and that they were not properly authenticated. In response, Williams explained that the program had an option where one could save transcripts of specific conversations. He testified he created a folder with the suspect’s name on it and saved conversations and any pictures the suspect sent in that folder. He explicitly denied altering any of the conversations. Williams claimed that the transcripts were authentic because he was present when the conversations were taking place and because Jackson admitted that he was the one chatting with Webb. The court overruled Jackson’s objection and admitted the transcripts into evidence.

The first communication between Webb and Jackson occurred on October 15 and 16, 2007, but there was no significant conversation. The two spoke again on the afternoon of October 17. Webb indicated that she had just returned from school. Jackson asked her if she was still in high school; Webb replied that she was in the ninth grade. He then asked Webb for a picture; he received a picture of someone age-regressed to appear fourteen years |sold. About ten minutes later, Jackson asked Webb if she was a virgin. Webb replied that she was. She followed up by stating that she was fourteen years old. The conversation ended about ten minutes later.

Jackson contacted Webb again at 1:55 p.m. on October 29, 2007. He asked her why she was not in school, to which she replied that she was done at school at 1:45 p.m. Two minutes later, Jackson asked Webb if she performed oral sex. He then asked Webb about her parents. Webb told him that her mother was at work and that her father was in Chicago. Jackson then immediately asked Webb if she wanted to perform oral sex on him. As the conversation proceeded, Webb asked Jackson if he had ever been with a fourteen-year-old before, to which Jackson replied no. Jackson then wrote that he was thinking about whether Webb would tell someone. Jackson told Webb to meet him at the Taco Bell and that they would have oral sex in the bathroom of the Taco Bell. At 3:15, Jackson told Webb that he was walking out of the door. At that time, Williams advised other detectives that Jackson would be going to the Taco Bell. He gave officers a description of Jackson and told them that Jackson would be arriving in a white car.

Detective Mike Welsh positioned himself at a gas station near the Taco Bell. While there, he saw a white car traveling north. The driver was later identified as Jackson. When Jackson first appeared, he started to turn left into the Taco Bell, but then continued northbound. Jackson then turned into the gas station, exited the car, went inside the store, and then returned to his car. He drove around the area, but he eventually pulled into the |4Taco Bell parking lot, sat there for a short period of time, and then left.

Jackson returned to his computer at 4:25 to talk to Webb. The two talked until 5:02, when Welsh and other officers arrived at Jackson’s home. Jackson’s girlfriend answered the door, but Jackson later talked to police and admitted that he had been talking with a fourteen-year-old on the computer. Later during an interview at the Conway Police Department, Williams asked Jackson to read the conversations dated October 29, 2007, and sign the pages if they accurately depicted the conversation. Every page of that transcript is signed. While Jackson was signing the transcript pages, Williams asked Jackson if he knew Webb was fourteen. Jackson replied that he did.

At the close of the State’s case, Jackson moved for dismissal. He reasserted his objections to the admissibility of the transcript. He also argued that the State failed to show that he was attempting to solicit a child fifteen years of age or younger into a meeting for the purposes of sex. The court denied his motion. Jackson then testified in his own defense. At the conclusion of Jackson’s testimony, the court stated that it was denying Jackson’s motions again. After taking a few days to consider the case, the court found Jackson guilty of internet stalking of a child. It sentenced him to two years in the Arkansas Department of Correction, followed by three years’ suspended imposition of sentence.

First, Jackson challenges the sufficiency of the evidence to support the conviction. When considering a challenge to the sufficiency of the evidence, we consider the evidence in the light most favorable to the State, considering only the evidence in favor of the guilty | verdict, and affirm if the conviction is supported by substantial evidence. Mitchem v. State, 96 Ark.App. 78, 238 S.W.3d 623 (2006). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Baughman v. State, 853 Ark. 1, 110 S.W.3d 740 (2003). Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the trier of fact to decide. Id.

Under Arkansas Code Annotated section 5-27-306(a)(2)(C) (Supp.2007), a person commits internet stalking of a child if the person being twenty-one years of age or older knowingly uses an internet service to seduce, solicit, lure, or entice an individual that the person believes to be fifteen years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in deviate sexual activity. Internet stalking of a child is a Class B felony if the person attempts to arrange a meeting with an individual that the person believes to be fifteen years of age or younger, even if a meeting with the individual never takes place. Ark.Code Ann. § 5-27 — 306(b)(1).

A criminal defendant’s intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Gikonyo v. State, 102 Ark.App. 223, 283 S.W.3d 631 (2008). Because intent cannot be proven by direct evidence, the fact finder is allowed to draw upon common knowledge and experience to | Binfer it from the circumstances. Id. Because of the difficulty in ascertaining a defendant’s intent or state of mind, a presumption exists that a person intends the natural and probable consequences of his or her acts. 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.

Jackson argues that the State presented insufficient evidence showing that he believed that he was talking to someone fifteen years of age or under. He argues that the evidence only shows that Webb identified her age once, on October 17, 2007, and that this page of the transcript did not contain his signature. He also relies on Yahoo’s policy requiring users of its instant-messaging program to be at least eighteen years of age.

The evidence presented by the State is sufficient to show that Jackson believed that he was talking to a fourteen-year-old girl. During the conversation on October 17, 2007, Jackson asked Webb if she was still in high school, to which Webb replied that she was in the ninth grade. On October 29, 2007, Jackson asked Webb why she was not at school, which showed that he believed Webb to be a ninth grader, not an adult. He also asked Webb about her parents. When Webb asked Jackson if he had ever been with a fourteen-year-old girl, he replied no. When the two were making arrangements, Jackson was concerned that Webb might get him in trouble. Finally, when questioned by police, Jackson admitted that he was talking to a fourteen-year-old on the internet and that it was wrong. Accordingly, we affirm on this point.

17Jackson also challenges the admissibility of the transcript of the conversations between him and Webb. He contends that the transcripts were inadmissible hearsay and that they were not properly authenticated. The admissibility of the transcripts is reviewed under the abuse-of-discretion standard. See Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006).

Proof of authenticity as a condition precedent to the admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Ark. R. Evid. 901(a). Authenticity may be satisfied by testimony of a witness with knowledge that the matter is what it is claimed to be. Ark. R. Evid. 901(b)(1). To prove authenticity of evidence, the State must demonstrate a reasonable probability that the evidence has not been altered in any significant manner. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003). The fact that a party proponent supplied the authentication does not go to the admissibility of the document, although it may go to the weight of the evidence. McDermott v. Strauss, 283 Ark. 444, 678 S.W.2d 334 (1984).

Jackson cites several cases in support of his argument that the transcripts were not properly authenticated. Most of the cases are irrelevant, as they go to the hearsay issue, not the authentication issue. The only precedent worth discussing is St. Clair v. Johnny’s Oyster 8& Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D.Tex.1999), where the district court discussed the admissibility of an unidentified piece of evidence from the internet:

Plaintiffs electronic “evidence” is totally insufficient to withstand Defendant’s Motion to Dismiss. While some look to the Internet as an innovative vehicle for communication, the Court continues to warily and wearily view it largely as one large catalyst for rumor, innuendo, and misinformation. So as to not mince words, the Court reiterates that this so-called Web provides no way of verifying the authenticity of the alleged contentions that Plaintiff wishes to rely upon in his Response to Defendant’s Motion. There is no way Plaintiff can overcome the presumption that the information he discovered on the Internet is inherently untrustworthy. Anyone can put anything on the Internet. No web-site is monitored for accuracy and nothing contained therein is under oath or even subject to independent verification absent underlying documentation. Moreover, the Court holds no illusions that hackers can adulterate the content on any web-site from any location at any time. For these reasons, any evidence procured off the Internet is adequate for almost nothing, even under the most liberal interpretation of the hearsay exception rules found in Fed. R.Civ.P. 807.

The present case is distinguishable from St. Clair. There, the court was commenting on a piece of evidence authored by an unknown source taken from an unidentified place on the internet. In this case, the evidence in question was produced by the detective and the defendant, as evidenced by Williams’s testimony and Jackson’s signature on a portion of the transcript. The authentication problems with a random page on the internet are absent when the parties who produced the document are present in court. To have the chat room transcripts admitted, the State needed only demonstrate a reasonable probability that the evidence had not been altered in any significant manner. Williams’s testimony and Jackson’s signature on the October 29 transcript satisfied that burden.

Jackson also argues that the statements were inadmissible hearsay; however, we [flr ejected a similar argument earlier this year. In another internet-stalking case, Dirickson v. State, 104 Ark. App. 273, 291 S.W.3d 198 (2009), the appellant sought to exclude transcripts similar to those in this case. With respect to the statements made by the appellant, we held that the statements were admissions by a party-opponent and were not hearsay (citing Ark. R. Evid. 801(c)). As for the officer’s statements, we held that they were not hearsay because they were admitted to put the conversation into context, not to prove the truth of the matters asserted. As we did in Dirickson, we reject Jackson’s hearsay arguments.

The court did not abuse its discretion in admitting the chat room transcripts. We affirm on this point as well.

Affirmed.

VAUGHT, C.J., and KINARD, J., agree.

      . In his argument, Jackson insinuates that the police doctored the transcripts. We found nothing in the record showing this to be the case.

      . To the extent that Jackson makes a hearsay argument, the precedents are irrelevant because those precedents discuss the admissibility of the evidence in question under the business-records exception to the hearsay rule, which is inapplicable to this case.


author: COURTNEY HUDSON HENRY, Judge.

text:
    2009 Ark. App. 464
    Tommy HENSON, Appellant, v. STATE of Arkansas, Appellee.
    No. CA CR 08-1300.
    Court of Appeals of Arkansas.
    June 3, 2009.

      Debra J. Reece, Russellville, for appellant.
    Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
   COURTNEY HUDSON HENRY, Judge.

|,A jury in Boone County found appellant Tommy Henson guilty of two counts of rape and one count of kidnapping as a class Y felony. As a consequence, the trial court imposed cumulative sentences totaling seventeen years in prison. For reversal, appellant argues that the evidence is not sufficient to support his convictions for rape, his conviction for kidnapping, or his conviction of kidnapping as a class Y offense. Substantial evidence supports appellant’s convictions. Therefore, we affirm.

The record reflects that appellant and C. Behayza, the victim, lived with one another at various times over the course of a ten-year period. During this time, Behayza gave birth |?to four children who were fathered by appellant. Behayza ended the relationship against appellant’s wishes in January 2007. Appellant and Behayza maintained contact, primarily because appellant kept the children while Behayza was at work. Sometimes, appellant, Be-hayza, and the children did things together on the weekends.

Behayza testified that she did not have consensual sexual relations with appellant after he moved out of her home. In her testimony, she described two incidents in which appellant had sexual intercourse with her following their separation. She testified that the first incident transpired at her home in April 2007. After inspecting her phone bill, appellant formed the belief that Behayza was seeing another man, and an argument ensued. Behayza said that, in the presence of the children, appellant pushed her down the hallway, picked her up, and carried her into her bedroom. With the children screaming in the hallway, appellant locked the bedroom door and removed his clothing. Behayza testified that she tried to get away but that appellant pushed her down, took off her shorts, and engaged in sexual intercourse with her. Behayza said that, the entire time appellant was on top of her, she was kicking, pushing, and telling him that he should not be doing this. At some point, the children came into the bedroom after one child picked the lock on the door. Behayza urged one of the children to go next door to call the police. However, appellant, while naked, chased the children out of the room and told them that they would get in trouble if they called for help.

|sBehayza further testified that, on July 26, 2007, appellant asked her for assistance in taking one of his vehicles to be repaired. She said that appellant became angry while they were driving in her vehicle because he thought that she had an alcoholic beverage in a cooler, which signified to him that she was dating another man. When they exited the vehicle, she locked it so appellant could not look inside the cooler, and appellant retrieved a tire iron from his truck and tried to pry open the back door of her vehicle. When that effort proved unsuccessful, appellant pulled his truck behind Behayza’s vehicle. Appellant’s anger escalated after Behayza told him to leave, and he began poking her in the chest with a hammer. Appellant then asked to go inside the house to get a drink of water. Behayza refused to let him in the house, but appellant snatched her purse and used the keys to gain entry. Once inside the home, appellant discovered that Behayza was preparing to move, and when he came back outside, he demanded the return of some furniture that he claimed belonged to him.

Behayza testified that appellant tossed her keys to her. When she moved toward her vehicle, appellant rushed at her. Be-hayza locked herself inside her vehicle and tried to leave the premises but could not do so because appellant’s car and a basketball goal blocked her path. Appellant slashed a tire on Behayza’s vehicle with his pocket knife, and he tried to break a car window with the tire iron. Behayza slightly rolled down her window, and appellant reached inside the vehicle and unlocked the door. He then grabbed her shirt and Lrousted her out of the vehicle. Behayza said that appellant dragged her by the arm through the garage and into the kitchen. Because she was crying, Behayza used the pretense of retrieving a tissue, but she instead ran out of the house. Appellant caught her on the front porch, and although Behayza was holding onto a support beam, he jerked her away and forced her back inside the house into the kitchen, down the hallway, and into the bedroom. Behayza said that she tried to hold onto the door frames as he dragged her through the house but that appellant pried her loose from them. Once inside the bedroom, appellant took off his clothes, removed Behayza’s clothes, and had sex with her. Behayza testified that she was hitting him and telling him to stop. The doorbell rang just after appellant completed the act. Behayza said that she grabbed her pants and shirt and “just took off.” She said that appellant grabbed her arm and told her not to answer the door but that she “got loose” because he could not hold onto her and get dressed at the same time.

Behayza discovered a police officer at the door, and the officer placed appellant under arrest. Charles Christopher, Be-hayza’s neighbor, had summoned the police. Christopher had heard appellant and Behayza arguing in the front yard, and he witnessed appellant trying to break the car window with a tire iron. He also saw appellant drag Behayza into the house. Christopher testified that Behayza looked frightened and was screaming for appellant to stop. During the investigation, officers found a button from Behayza’s shirt near her vehicle and another button from her shirt in the bedroom. Semen collected from a rape kit | ¡¡matched appellant’s DNA. The officers also removed a pocket knife from appellant’s person upon his arrest.

Shane Reese, a detective with the Harrison Police Department, interviewed appellant. During the interview, appellant and Reese mainly discussed the July 26 incident. Appellant related that he knew that Behayza did not want to have sex with him. He said that he “messed up” and knew that it was wrong. Appellant stated that Behayza “just laid there,” and he did not recall her telling him to stop or her hitting him. He said that he did not know why he forced her to have sex or why he did not stop, except to say that he hoped that forcing her to have sex might rekindle their relationship. Appellant further acknowledged that the day he had sexual relations with Behayza in April involved the “same stuff’ that occurred on July 26.

In this appeal, appellant challenges the sufficiency of the evidence with regard to his convictions for both rape and kidnapping. Although we will address appellant’s arguments separately, the standard of review for each is the same. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). Substantial evidence is evidence forceful enough to reach a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most | ^favorable to the State, and only evidence supporting the verdict will be considered. Moore, supra.

We first consider appellant’s argument concerning his convictions for rape. As pertinent here, a person commits rape if he engages in sexual intercourse with another person by forcible compulsion. Ark.Code Ann. § 5-14-103(a)(1) (Supp.2006). “Forcible compulsion” means physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person. Ark.Code Ann. § 5-14-101(2) (Repl.2006). The supreme court has defined the term “physical force” as any bodily impact, restraint or confinement, or the threat thereof. Ellis v. State, 364 Ark. 538, 222 S.W.3d 192 (2006). The test we use to determine if there was physical force is whether the act was against the will of the party upon whom the act was committed. Goodman v. State, 2009 Ark.App. 262, 306 S.W.3d 443.

Appellant argues that the evidence is not sufficient to support his convictions for rape because the State failed to prove the element of forcible compulsion. He maintains that the evidence is insufficient because he used no threats nor employed physical force when he had sexual intercourse with Behayza. We hold that substantial evidence supports appellant’s convictions. The existence of forcible compulsion does not depend on the quantum of force that is applied, but rather on whether the act is consummated against the victim’s will. Johnson v. State, 80 Ark.App. 79, 94 S.W.3d 344 (2002). Furthermore, this 17court has continually held that a rape victim’s testimony alone constitutes substantial evidence to support a rape conviction. Ellis, supra. Here, Behayza testified that she did not consent to have sexual relations with appellant on either occasion, that she told him no, and that she hit him during both ordeals. Her testimony indicates that the acts occurred against her will. Therefore, substantial evidence exists to sustain the convictions for rape.

We next consider appellant’s argument concerning his conviction for kidnapping. A person commits this offense if, without consent, the person restrains another person so as to interfere substantially with the other person’s liberty for the purpose of engaging in sexual intercourse. Ark.Code Ann. § 5-ll-102(a)(5) (Repl. 2006). Kidnapping is a class Y felony. Ark.Code Ann. § 5 — 11—102(b)(1). However, it is a class B felony if the defendant shows by a preponderance of the evidence that he voluntarily released the person restrained alive and in a safe place prior to trial. Ark.Code Ann. § 5-ll-102(b)(2).

“Restraint -without consent” is defined as restraint by physical force, threat, or deception. Ark.Code Ann. § 5-11-101(3) (Supp.2007). In Arkansas, it is only when the restraint exceeds that normally incidental to the crime that the rapist should also be subject to prosecution for kidnapping. See Summerlin v. State, 296 Ark. 347, 756 S.W.2d 908 (1988).

Appellant asserts that he did not kidnap Behayza during the July 26 incident because he used only the restraint necessary to compel her to have sexual intercourse. We are not persuaded by appellant’s argument. The record discloses that appellant disabled Behayza’s |svehicle, hoisted her out of the vehicle, and dragged her into the house. She attempted to escape by running outside, but appellant thwarted that attempt and forcibly pulled her back inside the house. While being dragged to the bedroom, Behayza tried to hang onto door frames, but appellant overcame those efforts as well. In light of these facts, substantial evidence supports the jury’s determination that the restraint employed by appellant was not merely incidental to the rape.

Appellant’s final argument is that substantial evidence does not support his guilt of kidnapping as a class Y offense. He argues that he released Behayza alive and in a safe place, and thus was guilty of kidnapping as a class B felony. We also reject this argument because the evidence does not show that appellant “voluntarily released” Behayza as contemplated by section 5-ll-102(b)(2). On the contrary, the evidence shows that Behayza effectuated her own release by escaping from appellant’s grasp. Appellant attempted to prevent Behayza from leaving the room, but he could not maintain his grip on her while simultaneously putting on his clothes. Under these circumstances, substantial evidence supports the jury’s conclusion that appellant did not release Behayza and is thus guilty of kidnapping as a class Y felony. See Wells v. State, 303 Ark. 471, 798 S.W.2d 61 (1990) (holding that a kidnapping victim who escaped was not released in a safe place).

Affirmed.

PITTMAN and MARSHALL, JJ., agree.

      . The prosecuting attorney also charged appellant with another count of rape and an additional kidnapping charge, but die jury acquitted appellant of those offenses.


text:
    2009 Ark. App. 458
    ARKANSAS COMMISSION ON LAW ENFORCEMENT STANDARDS, Appellant, v. Arlanders DAVIS, Appellee.
    No. CA 08-1248.
    Court of Appeals of Arkansas.
    June 3, 2009.

      Robinson, Zakrzewski & Achorn, P.A., by: Greg Robinson, Luke Zakrzewski, Bryan A. Achorn, and Daniel W. Pilking-ton, Pine Bluff, for appellant.
    Dustin McDaniel, Att’y Gen., by: Don K. Barnes, Ass’t Att’y Gen., for appellee.
   RITA W. GRUBER, Judge.

1 Appellant Arkansas Commission on Law Enforcement Standards and Training appeals the order of the Jefferson County Circuit Court reversing the Commission’s order revoking the certification of appellee, Arlanders Davis. On appeal, the Commission contends that its decision is supported by substantial evidence and therefore that the circuit court erred in reversing it. We agree with the Commission, and therefore we reverse the circuit court’s order and reinstate the Commission’s order.

This appeal arises out of an order of the Commission dated November 14, 2006, revoking the certification of Arlanders Davis pursuant to the Commission’s Regulation 1010(3)(a)(iv), which provides that the Commission may revoke the certification of any law enforcement officer if he “resigned while he was the subject of a pending internal [investigation.” Testimony at the Commission hearing indicated that Mr. Davis began working as a state police officer on June 20, 1977. At 10:00 a.m. on February 8, 2006, Mr. Davis was ordered by his employer to submit to a random drug test. The results of the test were positive for cocaine in an amount equal to five times the federal cut-off limit for exposure by passive inhalation.

State’s Exhibit One at the Commission hearing included an investigative summary prepared by Sergeant C.A. Beall of the state police internal affairs unit. The summary indicated that on February 10, 2006, Lieutenant Mullins and Sergeant Beall conducted a tape-recorded interview of Mr. Davis. Mr. Davis said that he did not know why he tested positive for cocaine and that he had never used cocaine, but he suggested that some of the medication he was taking might have caused the positive test result. He also mentioned that he had been to a Super Bowl party recently but that he did not know of anyone at the party who was using cocaine.

The next day, February 11, 2006, Mr. Davis called Sergeant Beall at home and told him that he knew where he had been exposed to cocaine. He told Sergeant Beall that on February 7, 2006, he had been riding in his car with a friend, Percy Wilson, and that Mr. Wilson had been smoking homemade cigarettes containing crack cocaine. Mr. Davis said that, at the time he was in the car with Mr. Wilson, Mr. Davis did not know the cigarettes contained cocaine.

|3On February 13, 2006, Mr. Davis provided Sergeant Beall with results from a drug screen taken by Mr. Davis on February 9, 2006, showing a negative result for cocaine. Sergeant Beall showed the negative drug screen to the state police medical review officer, Dr. J.R. Baber, who said that the test, taken twenty-four hours after the initial random drug screen, was “a non factor because of the rapid manner in which cocaine leaves your system.” After reviewing the prescription medications being taken by Mr. Davis, Dr. Baber also concluded that none of the medications would trigger a positive test result for cocaine. Finally, Dr. Baber stated that Mr. Davis would not have reached the cutoff levels for cocaine, which Mr. Davis exceeded, by merely inhaling crack cocaine fumes or vapors second hand.

In a memo to state police headquarters’ staff dated March 6, 2006, Lieutenant Mullins recommended that Mr. Davis be terminated. On March 10, 2006, a disciplinary review board, convened at state police headquarters to review the internal affairs complaint against Mr. Davis, recommended that Mr. Davis be terminated. No action was taken.

On March 31, 2006, Mr. Davis provided two letters to Major Tim K’Nuckles of the Arkansas State Police. In the first letter, Mr. Davis stated in relevant part:

Please accept this letter as my formal notification to the Arkansas State Police of my decision to resign from and take early retirement with the Arkansas State Police, conditioned upon the agreed terms arrived at between your office and my attorney, Bryan A. Ac-horn, which are outlined by Mr. Achorn in his letter to you on today’s date. Assuming that the agreed terms are outlined correctly, it is my intention that this resignation be effective | immediately.

Mr. Davis testified that Major K’Nuckles called Mr. Achorn’s assistant and advised him that the letter was not acceptable and that it needed to state simply that Mr. Davis was retiring. Therefore, Mr. Davis stated that he sent the second letter to Major K’Nuckles, which provided as follows: “The purpose of this letter is to inform you that, effective 5:00 o’clock p.m. on the date of this letter, I am retiring from the Arkansas State Police. Incident to my retirement, I request to be awarded my service revolver.”

On October 12, 2006, the Commission held a decertification hearing for Mr. Davis. The Commission issued an order on November 14, 2006, revoking Mr. Davis’s certification pursuant to its Regulation 1010(3)(a)(iv), finding that Mr. Davis had submitted his resignation from the Arkansas State Police while an internal affairs investigation was pending.

After reviewing briefs and hearing oral arguments on appeal, the Jefferson County Circuit Court vacated the Commission’s revocation and directed the immediate reinstatement of Mr. Davis’s certification. The circuit court found that the record lacked relevant evidence that a reasonable mind might accept to support the conclusion that Mr. Davis resigned from the state police. The court found that the proof was “so nearly undisputed that fair-minded persons could not reach the conclusion that Davis resigned, as opposed to retired.” The Commission brings this appeal from the circuit court’s order.

lfiOur review in this case is directed not to the circuit court’s decision, but to the decision of the Commission. Ark. Hearing Instrument Dispenser Bd. v. Vance, 359 Ark. 325, 327, 197 S.W.3d 495, 497 (2004). Administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Ark. State Police Comm’n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456, 458 (1999). We will uphold the agency’s decision if it is supported by substantial evidence and it is not arbitrary, capricious, or characterized by an abuse of discretion. Id. We give the most probative weight to the evidence in favor of the agency’s determination and look to the entire record in making this determination. Vance, 359 Ark. at 327, 197 S.W.3d at 497. Substantial evidence means valid, legal, and persuasive evidence such that a reasonable person might accept it as adequate to support the conclusion. Id. When an agency’s determination is supported by substantial evidence, the decision cannot be arbitrary or unreasonable. Id.

The Commission contends on appeal that substantial evidence supports its decision to revoke Mr. Davis’s certification pursuant to Regulation 1010(3)(a)(iv), which provides that the Commission may revoke the certification of any law enforcement officer if he “resigned while he was the subject of a pending internal investigation.” The questions before us are whether there is substantial evidence that Mr. Davis was “the subject of a pending internal investigation” and, if so, whether he “resigned” during the investigation.

| (¡There appears to be no argument that Mr. Davis was the subject of a pending internal investigation. He submitted to a random drug test, the results of which were positive for cocaine. The internal affairs division of the state police initiated an investigation of the matter. A disciplinary review board recommended that Mr. Davis be terminated. Before any action was taken in the matter, Mr. Davis sent a letter to the state police ending his employment. We hold that substantial evidence supports a finding that, at the time Mr. Davis sent his letter, he was the subject of a pending internal investigation.

The parties dispute whether Mr. Davis resigned or retired. The Commission determined that Mr. Davis resigned within the meaning of Regulation 1010(3)(a)(iv). In reviewing the Commission’s decision, the question is not whether the evidence would have supported a contrary finding, but whether it supports the finding that was made. Ark. Bd. of Examiners in Counseling v. Carlson, 334 Ark. 614, 618, 976 S.W.2d 934, 936 (1998). Further, it is the prerogative of the Commission to believe or disbelieve any witness and to decide what weight to accord the evidence. Id. Particularly in light of an agency’s specialization, insight through experience, and more flexible procedures to determine and analyze underlying legal issues affecting its agency, we will not substitute our judgment and discretion for that of an administrative agency. See id.

Mr. Davis testified that he was asked by someone at the state police to replace his first letter, informing the state police of his decision “to resign from and take early | .¡retirement with the Arkansas State Police,” with another letter stating simply, “I am retiring from the Arkansas State Police.” First, the Commission could have found Mr. Davis’s first letter to be a more accurate and credible statement of his actions — -that is, he was resigning from the state police and taking early retirement. This clearly supports the Commission’s determination that Mr. Davis “resigned while he was the subject of a pending internal investigation.”

However, regardless of which letter the Commission ultimately determined was intended by Mr. Davis to terminate his employment, substantial evidence supports its finding that Mr. Davis resigned within the meaning of Regulation 1010(3)(a)(iv). Both letters indicated in the reference line that they were letters of resignation. “Resignation” means “a formal notification of relinquishing an office or position.” Black’s Law Dictionary 1311 (7th ed.1999). This is exactly what Mr. Davis’s letter accomplished. “Retirement” is defined as “[voluntary termination of one’s own employment or career, esp. upon reaching a certain age.” Id. at 1317. In both letters, Mr. Davis was relinquishing his position with the state police. Mr. Davis has not contended that he terminated his employment because he had reached a certain age. While he had acquired enough years of service to qualify for retirement benefits upon his resignation (as his reference line designated in both letters), he terminated his employment due to the internal-affairs investigation.

|sThe Commission interpreted its own regulation’s language as encompassing Mr. Davis’s action, whether he denominated his termination as resignation or retirement. Administrative agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Ark. State Police Comm’n v. Smith, 338 Ark. 354, 357, 994 S.W.2d 456, 458 (1999). We hold that substantial evidence supports the Commission’s decision. Accordingly, we affirm the Commission’s decision and reverse the circuit court’s order.

Circuit Court reversed; Commission affirmed.

GLADWIN and GLOVER, JJ., agree.