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
1
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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