                                  Cite as 2014 Ark. App. 703

                    ARKANSAS COURT OF APPEALS
                                         DIVISION IV
                                         No. CR-14-403


                                                   Opinion Delivered   December 10, 2014

KENNETHA HENSON                                    APPEAL FROM THE HOT SPRING
                                APPELLANT          COUNTY CIRCUIT COURT
                                                   [No. 30CR-12-203-2]

V.                                                 HONORABLE CHRIS E WILLIAMS,
                                                   JUDGE
STATE OF ARKANSAS
                                  APPELLEE         AFFIRMED



                                LARRY D. VAUGHT, Judge

       Appellant Kennetha Henson appeals from her conviction for theft of property under

Ark. Code Ann. § 5-36-103 for embezzling money from Malvern Water Works, a department

of the City of Malvern. She argues that the circumstantial evidence presented against her at trial

was insufficient to sustain a conviction. We disagree and affirm.

       Henson was an office manager at Malvern Water Works. Malvern Water Works

accepted cash and checks from customers daily. On a fairly regular basis, the money drawers

were balanced and closed out, and the cash and checks were kept in a safe room until they

were deposited. The safe room was not locked during the day, and everyone in the office had

access to it. Henson was responsible for making all bank deposits. Henson would sometimes

make daily deposits, but she would also sometimes wait weeks between deposits. On some

occasions, Henson deposited only checks, although there would have been cash to deposit

every day.
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       Beginning in approximately 2006, during annual accounting audits,1 Henson began

explaining account shortages as “deposits in transit,” which is an accounting term for deposits

that have been made but do not yet appear on the bank statement. Specifically, Henson

reported that funds that should have been deposited by December 31 of the preceding year

were not actually deposited until the following year, which explained deficiencies in the

previous year’s account balance. This explanation for the deficiencies appears to have been

acceptable to the auditors at the time. The discrepancies were not considered material by the

auditors, given that the annual revenue for the Malvern Water Works was in excess of $20

million.

       In 2011, during the audit for 2010, the auditors discovered more substantial

discrepancies. They requested information from Henson about the deposits in transit she had

reported for that year. Henson would not or could not provide the information. At that point,

the office contacted the mayor of Malvern. Soon thereafter, the mayor instructed another

employee to take over all duties related to depositing money. The employee taking over

Henson’s duties dicovered that there was approximately $150,000 missing from the safe room

at the time, based on the current figures in the office’s general ledger.

       Henson was questioned about the missing money. She stated that she did not steal the

money and asked whether, if she had, would she not have something to show for it. When



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         It appears that, around 2006, due to a change in accounting practices nationwide, a
specific change in the accounting firm that audited Malvern Water Works, and changes in office
management, internal bookkeeping practices at Malvern Water Works became increasingly lax,
contributing to or allowing the theft at issue in this case.

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pressed to provide specific information as to the deposits in transit that she had reported, she

left the office. Henson was terminated on June 10, 2011.

       At trial, Jimmy Locke, a senior accountant with Arkansas Legislative Audit, testified

that he conducted an investigation of cash deposits and determined that, over a five-year

period, there was a shortage of approximately $226,925.55 from the two bank accounts to

which Henson was responsible for making deposits. Locke testified that Henson was

responsible for the collection, receipt, and depositing of payments for those accounts, and that

because deposits were not made daily or in any other organized manner, it was impossible to

reconcile bank deposit records with the office’s collection records.

       Evidence as to Henson’s personal finances and spending habits was also introduced at

trial. Henson’s gross income from 2006 until she was terminated was approximately $35,965

per year, and her husband’s gross income for that period was approximately $48,812 per year.

During the relevant time period, Henson made approximately $40,000 in unexplained cash

deposits to her personal accounts. Several witnesses testified that Henson had significant credit

card debt, defaults, overdraft charges, threatened home foreclosures, and difficulty in paying

her bills. Despite these apparent financial hardships, Henson spent approximately $5,900 on

vacation travel, $7,600 on concerts, and $2,300 on manicures. Once Henson was terminated

from Malvern Water Works, the cash deposits into her personal accounts stopped.

       We will affirm the denial of a motion for directed verdict if substantial evidence, either

direct or circumstantial, supports the conviction. Harmon v. State, 340 Ark. 18, 22, 8 S.W.3d

472, 474 (2000). Substantial evidence is evidence which would compel a conclusion one way


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or the other with reasonable certainty, without relying on mere speculation or conjecture. If

circumstantial evidence alone is relied upon, the evidence must establish every element of the

crime. Green v. State, 269 Ark. 953, 601 S.W.2d 273 (Ark. App. 1980) (citing Henley v. State,

255 Ark. 863, 503 S.W.2d 478 (1974)). Circumstantial evidence may not provide the sole

basis for a criminal conviction if it can be reconciled with the theory that someone other than

the defendant committed the crime or that there was no crime committed at all. Bowie v.

State, 185 Ark. 834, 49 S.W.2d 1049 (1932). The circumstances relied upon by the State

“must be so connected and cogent as to show guilt to a moral certainty and must exclude

every other reasonable hypothesis than that of guilt of the accused.” Lindsey v. State, 68 Ark.

App. 70, 73, 3 S.W.3d 346, 348 (1999).

       Henson was charged and convicted of theft of property pursuant to Arkansas Code

Annotated § 5-36-103(b)(1)(A) (Repl. 2013). A person commits theft of property if she

knowingly “[t]akes or exercises unauthorized control over or makes an unauthorized transfer

of an interest in the property of another person with the purpose of depriving the owner of

the property[.]” Ark. Code Ann. § 5-36-103(a)(1) (Repl. 2013). Theft of property is a Class

B felony if the value of the property is twenty-five thousand dollars or more. Ark. Code Ann.

§ 5-36-103(b)(1)(A) (Repl. 2013). The distinction between types of theft has been abolished

under Arkansas law; Arkansas Code Annotated § 5-36-102 (Repl. 2009) explicitly states that

theft of property embraces the separate offenses previously known as larceny, embezzlement,

false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and

other similar offenses.


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       We hold that substantial evidence supports the theft-of-property conviction in this

case. The evidence showed that Henson was the only employee who made bank deposits and

was the only employee who reported the deposits in transit used to conceal the theft.

Moreover, there is no other explanation for the significant cash deposits made to her personal

accounts, which stopped once she was terminated, or for how she was able to afford

expensive vacations, concerts, and luxury beauty treatments on her annual household

income.

       Henson challenges her conviction by citing evidence that other people had access to

the cash stored in the safe room at Malvern Water Works and, therefore, had an opportunity

to commit the crime. She points to evidence that her depositing and accounting practices

were satisfactory to the accountants prior to their review of the 2010 accounts. She claims

that evidence as to her credit-card debt and difficulties in making mortgage and utility

payments is exonerative rather than inculpatory because it indicated a lack of funds rather

than excess cash at hand. Finally, she contends that the evidence related to her personal

finances and expenditures amounts to nothing more than poor money management rather

than evidence of six-figure embezzlement.

       Henson’s arguments fail because they wholly ignore the substantial evidence that

weighs heavily in favor of her guilt. Although the evidence presented against Henson was

mostly circumstantial, it was more than sufficient to sustain her conviction. In this case, the

evidence established that there was only one theory of the crime that conformed to the

evidence. Not only did Henson have access to the cash, she concealed the missing money


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during audits, and she benefited from the crime. Therefore, we hold that substantial evidence

supports her conviction for theft of property.

       Affirmed.

       GLADWIN, C.J., and WALMSLEY, J., agree.

       Jeff Rosenzweig, for appellant.

       Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.




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