dissenting. I respectfully dissent, as I believe that the value of the property in this case included the sales tax paid by appellant and would therefore affirm the judgment of the circuit court. The majority refers to this case as one of first impression, ignores our case law, and then proceeds to rely upon the case law of other jurisdictions. In my view, there is no need to resort to the case law of other jurisdictions, as our own statute and case law require us to affirm.
Appellant was charged with theft by receiving property having a “value . . . less than two thousand five hundred dollars ($2,500) but more than five hundred dollars ($500).” Ark. Code Ann. § 5-36-106(e)(2)(A) (Repl. 2006). “Value” means “[t]he market value of a property or service at the time and place of the offense, or if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense.” Ark. Code Ann. § 5-36-101 (12)(A)(i) (Repl. 2006). This court has held that the “original cost of property may be one factor” considered in determining market value. Reed v. State, 353 Ark. 22, 27, 109 S.W.3d 665, 668 (2003). In Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), we held that the owner’s testimony of what he paid for the stolen item eighteen months before the theft constituted substantial evidence of value. Finally, we said in Cannon v. State, 265 Ark. 270, 273, 578 S.W.2d 20, 22 (1979), that the market value of a car is “what it will bring on the open market when sold by a willing seller to a willing and able buyer.” “Evidence of the purchase price recently paid for the property may be evidence of market value when admitted without objection.” Id.
In this case, the owner of the generator, Mr. Gilmore, testified that he purchased the generator at Sears and paid $589.17. He provided a receipt to support his testimony. This is evidence of what a willing buyer, Mr. Gilmore, paid to a willing seller, Sears, just six months before the theft. See Cannon, supra; People v. Bazo, 139 Misc. 2d 1003, 529 N.Y.S.2d 432 (1988) (concluding that the market value of a stolen item is determined by the “consumer-seller” market, in which a reasonable buyer would consider the sales tax in determining what he or she would pay for the item). Mr. Gilmore also testified that he had never taken the generator out of the box. Further, it was undisputed that the generator was still in the box when it was stolen and appeared to be unused. In my view, this is substantial evidence to support the court’s conclusion that the value of the generator exceeded $500. 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. Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006). Accordingly, I would affirm.
Corein and Dickey, JJ., join this dissent.