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Elizabeth Perry I attest to the accuracy and ARKANSAS COURT OF APPEALS integrity of this document DIVISION IV 2023.07.12 12:18:37 -05'00' No. CR-21-128 2023.003.20215 JIMMY MARION BAUGH Opinion Delivered October 20, 2021 APPELLANT APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT V. [NO. 40CR-19-18]

STATE OF ARKANSAS HONORABLE ALEX GUYNN, APPELLEE JUDGE

AFFIRMED

STEPHANIE POTTER BARRETT, Judge

Jimmy Baugh appeals the amount of restitution ordered by the Lincoln County

Circuit Court after he pleaded guilty to the offense of obstructing governmental operations.

The events leading up to his plea involved cattle belonging to his neighbor, Gerry Harris.

Harris’s cattle crossed over to Baugh’s land through a broken fence in January 2019 and

remained on Baugh’s land. Baugh ultimately paid to have the cattle rounded up and taken

to auction, where eight cows and a calf belonging to Harris were sold for $4,204.27. After

deducting expenses, Baugh delivered the remainder of the proceeds, $2,860.97, in the form

of a check to the Lincoln County Sheriff’s Office in the name of both the sheriff’s office

and Harris. Harris claimed he lost thirteen cattle due to Baugh’s actions. Because the

amount of restitution due Harris could not be agreed on, a hearing was held in June 2020.

The Lincoln County Circuit Court ordered Baugh to pay Harris $12,008.54 in restitution.

Baugh now appeals, arguing that the restitution amount was excessive and not consistent with the value of the cattle; the circuit court erred in relying on the testimony of State

witness Aubrey Barksdale, because the State failed to offer any proof as to the value of the

lost property at the time it was sold; there was no actual economic loss to Harris; and the

appropriate measure of loss was eight cows and one calf, not thirteen cows. We affirm.

A defendant who is found guilty or who enters a guilty plea or nolo contendere to

an offense may be ordered to pay restitution.

(a)(1) (Supp. 2021).

The sentencing authority, whether the circuit court or a jury, shall make a determination

of actual economic loss caused to the victim by the offense.

(b)(1). In bench trials, the standard of review on appeal is not whether there is substantial

evidence to support the finding of the circuit court, but whether the court’s findings were

clearly erroneous or clearly against the preponderance of the evidence. El Paso Prod. Co. v.

Blanchard,

,

(2007). 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 an error has been committed.

Facts in dispute and

determinations of credibility are within the province of the fact-finder.

Baugh’s first two points are best addressed together. He argues the amount of

restitution ordered by the circuit court was excessive and inconsistent with the actual value

of the cattle, and relying on the testimony of Harris and Barksdale was erroneous because

the State offered no proof as to the value of the cattle at the time they were was sold. Baugh

contends that the only valuation of the cattle was $4,204.27, the amount the eight cows and

one calf brought at auction.

2 Harris testified at the restitution hearing that thirteen head of his cattle ended up on

Baugh’s property due to a fence that had washed out. Harris claimed that he tried to retrieve

his cattle, but the gates were locked, and Baugh would not allow him to access the gates

and refused to return the cattle to him. Harris said he called the police, who came out to

attempt to assist, but Baugh would not respond to them. Harris said he later learned that

Baugh had sold eight cows and one calf, but he claimed that the cattle were not sold at a

fair price because the market was low. He explained that the cows were bred cows (cows

due to have calves that had been bred with his bull), that he earned some of his money from

selling the calves after they were born, and that there was no reason for him to sell the cows

at that point because he was using them to produce calves. Harris testified that the value of

the nine cows sold was about $8,400, and the value of the other four cows was $1,200 each

and another year’s crop of calves. He said he did not just lose the cows in question but also

what they could have made by producing calves.

Aubrey Barksdale testified that he is familiar with the cattle business and has a good

eye for what cattle should look like and what they sell for; he explained that the value of an

animal at any given time is not really its value on the open market. Barksdale testified that

cows that were pregnant would be worth anywhere from $1,000 to $1,150 but that most

people would not sell young cows because the younger the cows were in the herd, the

longer longevity there was for the herd. Barksdale admitted on cross-examination that his

estimates relied on Harris’s assertions that the cows were all young and pregnant, and he

agreed that a calf would probably not be worth as much as a pregnant cow.

3 Baugh claimed Harris’s cows were wild and starving. He testified that one of his

employees called Harris about the cattle, but Harris never came to get them, so after about

ten days, he had the cattle rounded up and taken to auction, where they were sold. Baugh

blamed the price Harris’s cattle brought on their poor condition. Baugh said that he did

not keep any of Harris’s cattle, but he admitted that he had some of Harris’s cattle in his

holding pen that he had turned out because he had to use the pen. Baugh asserted those

cows either went to Harris’s property or to another neighbor’s property after they were

released.

Baugh cites Jester v. State,

,

(2006), in support of his

argument that the amount the cattle brought at auction should be the amount of restitution

owed. In Jester, the circuit court ordered that $180,000 be paid as restitution for wrongfully

cut timber; our supreme court affirmed that figure, holding that restitution for the

unauthorized cutting of timber should represent the value of the trees as they stood on the

property before they were cut down and milled because the goal of restitution is to make

the victim whole, and the restitution amount “should accurately reflect the amount of

economic loss” suffered by the victim. Jester,

,

.

Jester supports the circuit court’s restitution award in this case. Disputed facts and

credibility determinations are within the province of the fact-finder. El Paso Prod.

Harris testified that he would not have sold his cattle in January 2019 because they

were young and used for breeding and that he earned some of his money by selling the

calves after they were born. He estimated the nine cows sold were worth $8,400, and the

other missing cows were worth $1,200 each. The circuit court had evidence before it, if

4 determined to be credible, that would support the amount of restitution ordered. We

cannot say the circuit court’s decision is clearly erroneous.

In his next point, Baugh argues that the testimony at the restitution hearing suggested

there was no actual economic loss to Harris because Relyance Bank had loaned Harris

money and had taken a security interest in a herd of cattle; Harris had defaulted on the loan;

and Relyance had obtained an order of delivery for the herd of cattle in September 2018.

Steve White, vice president of agricultural lending at Relyance, testified that Harris did not

turn over the cattle, telling Relyance in January 2019 that the cattle were deceased and that

he did not own any cattle. White did not know if the cattle in which Relyance had a

security interest were the same cattle sold by Baugh or the other missing cattle.

Baugh argues on appeal that because Relyance had obtained an order of delivery of

its collateral in September 2018, and Harris lied about not owning cattle in January 2019,

Harris suffered no actual economic loss. He contends that the issue is who is entitled to

restitution, suggesting that Relyance is “likely the party entitled to the sales proceeds” given

its order of delivery and arguing that if the circuit court’s decision is affirmed, Harris will

receive restitution resulting from the sale of cattle to which he had no right to possess.

However, at the restitution hearing, Baugh’s only argument was that if the circuit

court ordered restitution, Relyance would have to be included on the check because it had

an order of delivery. Baugh has changed his argument on appeal; therefore, it cannot be

addressed. Parties are bound on appeal by the scope and nature of the objections and

arguments presented at trial, and arguments that have not been raised at trial will not be

addressed. Milton v. State,

,

(2003). Because Baugh did

5 not raise this argument to the circuit court, we are precluded from reaching it on appeal.

Brown v. State,

,

(2009).

In his last point, Baugh contends that the record of the restitution hearing includes

“suggestions” that he stole thirteen of Harris’s cows. He argues that this court should reject

that contention and make clear that the proper amount of restitution should reflect only the

eight cows and one calf he delivered to the livestock auction. Citing Bogard v. State,

,

, he states that “it is error for a defendant to be

ordered to pay restitution for offenses with which he has not been charged or to which he

did not plead guilty or no contest.” Baugh conceded he sold eight cows and one calf and

admitted penning four additional cows that were released and whose whereabouts are

unknown. He now argues that because he had not pleaded guilty to, or been convicted of,

stealing thirteen cows, he cannot, as a matter of law, be ordered to pay restitution for more

than nine head of cattle.

There was not a number of cows specified at the plea hearing where Baugh pleaded

guilty to obstructing governmental operations. Harris testified at the restitution hearing that

he was missing a total of thirteen cows. As discussed above, there was evidence before the

circuit court that would support the amount of restitution ordered.

Affirmed.

HARRISON, C.J., and KLAPPENBACH, J., agree.

ARK AG LAW, PLLC, by: J. Grant Ballard, for appellant.

Leslie Rutledge, Att’y Gen., by: Jacob H. Jones, Ass’t Att’y Gen., for appellee.

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