dissenting. The appellant, who was eleven years old at the time of the incident, was adjudged delinquent for shoplifting an umbrella valued at $5.99. He was sentenced to 3 months unsupervised probation and $35 in court costs. I would reverse because I do not think the evidence is sufficient to support the trial court’s decision. Since the case was tried by a judge and not a jury, no motion for directed verdict was necessary. See Iqwe v. State, 312 Ark. 220, 489 S.W.2d 462 (1993); Bradley v. State, 41 Ark. App. 205, 849 S.W.2d 8 (1993).
In hearings concerning delinquency, the trial judge must be convinced of the accused’s guilt beyond a reasonable doubt. Ark. Code Ann. § 9-27-325(h)(1) (Repl. 1993). However, in appeals from criminal convictions, where the reasonable doubt standard is applied in the trial court, the test on appeal is that of substantial evidence and if the conviction is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. See Graves & Parham v. State, 236 Ark. 936, 370 S.W.2d 806 (1963). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; evidence is not substantial if it leaves the fact finder to speculation and conjecture in choosing between two equally reasonable conclusions and merely gives rise to a suspicion. Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). Although a juvenile delinquency hearing is not a criminal proceeding, this substantial evidence standard has been applied in considering the appeal of a juvenile case. D.D. v. State, 40 Ark. App. 75, 842 S.W.2d 62 (1992).
Here, George Chapman, a security guard, testified that he observed the appellant with his mother and grandmother in Fred’s Department Store in Forrest City; that the mother took an umbrella off the rack and handed it to the appellant; that the appellant carried it through the store; and then appellant tried to go through the turnstile, which is two shopping carts away from the checkout lines and only turns one way, with the umbrella. Chapman said he told the appellant that he could not go through the turnstile and appellant walked back to his grandmother who was then at register 6.
Chapman said he observed the grandmother check out, get her merchandise, take the appellant by the hand, and walk out the door. He said he next observed the mother standing in another line to be checked out. He said the appellant was holding the umbrella in his hand when he walked out. He also said the appellant did not attempt to conceal the umbrella but “if he had a jacket on he probably would have.” When asked whether appellant did anything suspicious after he rejoined his grandmother, Chapman responded that “he just stood there with her in the line.”
Counsel also asked whether Chapman could agree that it was possible the appellant was trying to go through the turnstile to get to the front of the aisle where his grandmother was checking out instead of trying to leave the store, and Chapman responded no, “because he tried to go through the turnstile to go out the door.” However, Chapman also admitted that no one had ever tried to go through the turnstile to go out the door with merchandise.
Josie Rogers, the clerk who rang up the grandmother’s purchases, testified that she noticed the umbrella in appellant’s hand; that she asked about the umbrella; and that the grandmother said the boy’s mother was going to pay for it. Ms. Rogers testified, “I don’t believe the boy stole anything. The grandmother absolutely said the mother was going to pay for it.”
Now this is the evidence upon which the judge found that the appellant was a juvenile delinquent for stealing an umbrella. I think it is abundantly clear that the evidence is unusually weak. The first problem is that the mother took the umbrella off the rack and gave it to the boy. Josie Rogers testified that the grandmother said the mother was going to pay for it. But the security guard, Mr. Chapman, testified that he did not give “them” an opportunity to pay for it. He said “they” had that opportunity when “they” were standing at the cash register. However, Mr. Chapman also testified that when the appellant and his grandmother walked out of the store, the appellant’s mother was standing in another line to be checked out. So, it is clear that when Chapman said “they” had the opportunity to pay for the umbrella he was referring to the boy and his grandmother. Of course it was the mother, according to Josie Rogers, who was going to pay for the umbrella, but she was not given the opportunity.
Moreover, the security guard “thought” the boy was trying to go through the turnstile to leave the store, but he admitted that no one had ever tried to go through the turnstile to go out of the door with merchandise. Also, he “thought” the appellant would “probably” have attempted to conceal the umbrella “if he had a jacket on.”
I do not believe that reasonable minds, without resorting to speculation and conjecture, could conclude from this evidence that the appellant committed theft of property.
I would reverse.
Rogers, J., concurs.