Ashe v. State

Leamon L. ASHE v. STATE of Arkansas

CA CR 96-418                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Division I and IV
                Opinion delivered April 16, 1997


1.   Evidence -- sufficiency of -- appellate review. -- On review of the
     sufficiency of the evidence, the appellate court seeks to
     determine whether the verdict is supported by substantial
     evidence; substantial evidence, whether direct or
     circumstantial, must be of sufficient force and character that
     it will, with reasonable and material certainty and precision,
     compel a conclusion one way or the other; it must force or
     induce the mind to pass beyond suspicion or conjecture; the
     test is not satisfied by evidence that merely creates a
     suspicion or that amounts to no more than a scintilla or that
     gives equal support to inconsistent inferences; evidence is
     not substantial when the factfinders are left only to
     speculation and conjecture in choosing between two equally
     reasonable conclusions and when it merely gives rise to a
     suspicion.

2.   Motions -- directed verdict -- when it should be granted. -- A directed
     verdict should be granted where there is no evidence from
     which the jury could have found, without resorting to surmise
     and conjecture, the guilt of the defendant.  

3.   Evidence -- inferences of guilt in criminal appeal -- requirements for
     reliance. -- Where inferences are relied upon in a criminal
     appeal, they should point to guilt so clearly that any other
     conclusion would be inconsistent; this is so regardless of how
     suspicious the circumstances are.

4.   Evidence -- insubstantial evidence in criminal appeal -- dismissal
     constitutionally required. -- When the evidence is found
     insubstantial in a criminal appeal, the double jeopardy clause
     of the United States Constitution requires a dismissal of the
     action.

5.   Evidence -- sufficiency of -- necessary to ascertain only evidence
     favorable to State in criminal appeal. -- In determining the
     sufficiency of the evidence in a criminal appeal, it is
     necessary to ascertain only the evidence favorable to the
     appellee State, and it is permissible to consider only that
     testimony that supports a verdict of guilt.  

6.   Evidence -- circumstantial evidence sufficient to constitute substantial
     evidence. -- The evidence against appellant was circumstantial,
     but circumstantial evidence is sufficient to constitute
     substantial evidence; in determining whether the evidence is
     substantial, the appellate court considers only the evidence
     that supports the conviction without weighing it against other
     evidence favorable to the accused; circumstantial evidence
     alone may constitute substantial evidence when every other
     reasonable hypothesis consistent with innocence is excluded;
     once the evidence is determined to be sufficient to go to the
     jury, the question whether the circumstantial evidence
     excludes any other hypothesis consistent with innocence is for
     the jury to decide. 

7.   Jury -- credibility of witnesses is matter for jury to determine. -- The
     credibility of the witnesses who testify in a criminal trial
     is a matter for the jury to determine, and it may reject, in
     whole or in part, the testimony of any witness, including the
     defendant, who is the person most interested in the outcome of
     the trial.

8.   Evidence -- fingerprints -- appellant's fingerprint on vehicle's mirror and
     other factors constituted sufficient evidence of guilt. -- Fingerprints,
     under some circumstances, may be sufficient to sustain a
     conviction; however, fingerprints alone have been held to be
     insufficient; appellant's fingerprint on the stolen vehicle's
     rearview mirror, the proximity of the stolen vehicle to the
     apartment in which appellant was living, and the fact that
     appellant had relatives living within walking distance of the
     car lot from which the vehicle was stolen, considered
     together, constituted sufficient evidence to support the
     jury's finding of guilt.
9.   Appeal & error -- preservation of issue for appeal. -- A party must
     make known to the trial court the action that he wishes the
     court to take; it is the duty of a party desiring relief to
     apprise the trial court of the proper basis upon which he
     relies in order to preserve an issue for appeal.

10.  Trial -- mistrial -- when appropriate -- trial court's discretion. --
     Mistrial is an extreme remedy that should only be granted when
     justice cannot be served by continuing the trial; a mistrial
     is only appropriate when the error is beyond repair and cannot
     be corrected by any curative relief; a trial court has broad
     discretion in granting or denying a motion for a mistrial, and
     the trial court's decision will not be reversed absent abuse
     of that discretion.

11.  Trial -- burden on appellant to request curative relief -- trial court's
     refusal to grant mistrial was not abuse of discretion. -- It was
     appellant's burden to request curative relief, and his failure
     to request a limiting instruction cannot inure to his benefit
     on appeal; where appellant did not request the trial court to
     reinstruct the jury on the entire definition of theft of
     property, the appellate court could not agree that the trial
     court's action in refusing to grant a mistrial on the basis of
     having departed from the Arkansas Model Criminal Instructions
     was an abuse of discretion.

12.  Criminal procedure -- sentencing -- State is permitted to appeal illegally
     imposed sentence and to appeal as cross-appellant. -- The State is
     permitted to appeal a sentence that was illegally imposed on
     a defendant by the circuit court pursuant to Arkansas Rules of
     Appellate Procedure--Criminal 3(b) and (c) (1996); moreover,
     in a criminal case, the State is permitted to pursue an appeal
     as a cross-appellant.

13.  Criminal procedure -- sentencing -- thirty-year sentence was within
     statutory range of permissible sentences. -- Under Ark. Code Ann. 
     5-4-501(b)(4) (Supp. 1995), a defendant who is convicted of a
     Class C felony and has four or more prior felony convictions
     may be sentenced to a term of not less than three nor more
     than thirty years; thus, the sentence of thirty years'
     imprisonment imposed by the jury was within the statutory
     range of permissible sentences for someone with more than four
     prior felony convictions who is convicted of a Class C felony.

14.  Criminal procedure -- sentencing -- issue of illegal sentence may be raised
     for first time on appeal. -- The State may raise at any time the
     illegality of reducing a sentence, and the issue of an illegal
     sentence may be raised for the first time on appeal;
     allegations of void or illegal sentences are treated as
     similar to problems of subject-matter jurisdiction and
     reviewed whether or not an objection was made in the trial
     court; a sentence is void when the trial court lacks authority
     to impose it; where the State filed its answer objecting to
     appellant's motion for reduction of his sentence, it reserved
     the issue for appeal, particularly because the court granted
     the motion without conducting a hearing.

15.  Criminal procedure -- sentencing -- when criminal defendant is sentenced. -
     - A criminal defendant is sentenced when the statutory
     authority of a circuit court to reduce a sentence of
     imprisonment ends and the constitutional authority of the
     Governor to grant clemency begins; under case law, a defendant
     is sentenced when the trial judge enters a judgment and
     commitment order; a trial court is without jurisdiction to
     modify a sentence once it has been put into execution.

16.  Criminal procedure -- sentencing -- motion for reduction of sentence is
     request for clemency -- reserved to Governor. -- Once a defendant has
     been sentenced, any motion for reduction of the length of the
     sentence is a request for clemency, which is reserved to the
     Governor under Ark. Const. art. 6  18; because of the power
     to pardon held by the Governor, courts have no authority to
     reduce a defendant's sentence on the basis that it is unduly
     harsh.

17.  Criminal procedure -- sentencing -- reduction-of-sentence statute not
     applicable -- pertains only to illegal sentences. -- Arkansas Code
     Annotated  16-90-111 (1987) was not applicable in this case
     because it pertains only to illegal sentences; moreover, the
     supreme court has held that section 16-90-111 (Supp. 1991),
     which permits the trial court to correct a sentence imposed in
     an illegal manner within 120 days after the receipt of the
     affirming mandate of the appellate court and which permits an
     illegal sentence to be corrected at any time, is in conflict
     with A.R.Cr.P. Rule 37.

18.  Criminal procedure -- sentencing -- appellant's original sentence was
     within statutory range -- sentence modified to reinstate original thirty-
     year sentence. -- Where appellant's original sentence was within
     the statutory range of permissible sentences for someone
     convicted of a Class C felony who has more than four prior
     felony convictions, the appellate court modified his sentence
     to reinstate the original thirty-year sentence and $5,000 fine
     recommended by the jury.


     Appeal from Crittenden Circuit Court; Samuel Turner, Jr.,
Judge; affirmed on direct appeal; reversed on cross appeal.
     Donald A. Forrest, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Senior App. Advocate, for appellee.

     Sam Bird, Judge.
     Appellant Leamon Ashe was found guilty by a jury of theft of
property and sentenced as an habitual offender to thirty years in
the Arkansas Department of Correction and fined $5,000.  A motion
for judgment NOV, for new trial, and for reduction of sentence was
filed, and on December 13, 1995, the trial court entered an order
denying appellant a new trial but reducing his sentence to fifteen
years with credit for time served.  Both appellant and the State
have appealed.  Appellant argues that the trial court (1) should
have granted his motion to dismiss for lack of sufficient evidence
to convict, and (2) erred in departing from the model jury
instruction.  The State, as cross-appellant, argues that the trial
court erred in reducing the defendant's thirty-year prison
sentence, which had been fixed by the jury, to a sentence of
fifteen years in the Arkansas Department of Correction.
     At trial, Susan Foster testified that she was part owner of
Clyde's Used Cars in West Memphis, Arkansas, and on May 5, 1995,
she reported the theft of a 1983 greenish-gray Cadillac from her
lot.  She said she had sold the car the day before for $995, closed
the business at about 5:30 p.m., and the next morning when the
buyer came to pick the car up, it was gone.  Ms. Foster said she
did not see the vehicle again until she picked it up at the Memphis
impound lot several weeks later.  She also testified that she did
not know Leamon Ashe and that no one at her business gave him
authorization to use the vehicle.  
     G.R. Herbert, a Memphis police officer, testified that on June
26, 1995, he was dispatched to the Overton Manor Apartment Complex
at 3046 St. Clair Place about 8:45 p.m. to look for a stolen car. 
He said that although this was a fairly large apartment complex,
each apartment had its own number, and he found a 1983 gray
Cadillac parked closest to and in front of 3046 St. Clair.  He said
the steering column was broken, the trunk lock was punched out, a
tire was flat, and it had no license plate.  Officer Herbert said
he ran the vehicle identification number and found that the car was
stolen so he had it towed to the impound lot.
     C.I. Woodruff, another Memphis police officer, testified that
he worked in the crime scene unit, took photographs, made diagrams
of crime scenes, inventoried and tagged evidence, looked for latent
fingerprints, and preserved evidence.  He processed the Cadillac on
June 27, 1995, and took pictures of the car that depicted the
damage.  Officer Woodruff said the only identifiable fingerprint he
found was on the front corner of the rearview mirror, which was
lying on the floorboard near the front passenger's seat. 
     Frank Stuckey testified to the procedure he used in taking
appellant's fingerprints, and the fingerprint card was introduced
into evidence without objection.  Andre Nagoski testified that he
is a latent fingerprint examiner for the Memphis police department,
and he identified the fingerprint found on the rearview mirror in
the floorboard of the Cadillac as matching the right ring finger of
the appellant. 
     Memphis Police Officer Michael W. Allen testified that he had
interviewed the appellant, who gave his address as 3046 St. Clair
Place, Memphis, Tennessee, and said he had a sister who lived in
West Memphis on South 11th Street, within a few blocks of Clyde's
Auto Sales. 
     Appellant argues in his first point for reversal that the
evidence was insufficient to support his conviction.  A person
commits theft of property if he knowingly takes 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 thereof.  Ark. Code Ann.  5-36-103(a)(1)
(Repl. 1993).  Our standard of review in a case such as this was
stated by the Arkansas Supreme Court in Nichols v. State, 280 Ark.
173, 655 S.W.2d 450 (1983):
          On appellate review of the sufficiency of the
     evidence, we seek to determine whether the verdict is
     supported by substantial evidence.  We reiterated in
     Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), that
     substantial evidence, whether direct or circumstantial,
     must be of "sufficient force and character that it will,
     with reasonable and material certainty and precision,
     compel a conclusion one way or the other.  It must force
     or induce the mind to pass beyond suspicion or conjecture
     . . . . [T]he test is not satisfied by evidence which
     merely creates a suspicion or which amounts to no more
     than a scintilla or which gives equal support to
     inconsistent inferences."  Evidence is not substantial
     whenever the factfinders are left "only 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).
     A directed verdict should be granted where there is no
     evidence from which the jury could have found, without
     resorting to surmise and conjecture, the guilt of the
     defendant. Fortner & Holcombe v. State, 258 Ark. 591, 528 S.W.2d 378 (1975).  In Ravellette v. State, 264 Ark. 344,
     571 S.W.2d 433 (1978), we said:  "Where inferences are
     relied upon, they should point to guilt so clearly that
     any other conclusion would be inconsistent. This is so
     regardless of how suspicious the circumstances are."

          Here, there is no evidence upon which the jury could
     base its convictions except upon surmise and conjecture.
     When the evidence is found insubstantial on appeal, the
     double jeopardy clause of our federal constitution
     requires a dismissal of the action.  Roleson v. State,
     277 Ark. 148, 614 S.W.2d 656 (1981); Polland v. State,
     264 Ark. 753, 574 S.W.2d 656 (1978); Burks v. U.S., 437 U.S. 1 (1978); and Greene v. Massey, 437 U.S. 19 (1978). 

Nichols v. State, 280 Ark. at 175-76, 655 S.W.2d   at 452.
     Appellant submits that the State's only evidence against him
was:  (1) An unsubstantiated report that he had relatives living
within two to four blocks of the car lot from which the car was
stolen; (2) the car was found in Memphis, Tennessee, about a month
after the theft, parked in front of 3046 St. Clair Place, which was
the address appellant gave as his address; (3) a fingerprint
matching one of appellant's fingerprints was found on the
unattached rearview mirror that was lying on the floor of the car;
and (4) a hearsay report about a "Crimestopper's tip" that led
police to the car.  Appellant submits various scenarios that would 
innocently explain these facts.  
     In determining the sufficiency of the evidence, it is
necessary to ascertain only the evidence favorable to the appellee
State, and it is permissible to consider only that testimony that
supports a verdict of guilt.  Gardner v. State, 296 Ark. 41, 67,
754 S.W.2d 518, 531 (1988).  The evidence against appellant was
circumstantial, but circumstantial evidence is sufficient to
constitute substantial evidence.  Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).  In determining whether the evidence was
substantial we consider only the evidence that supports the
conviction without weighing it against other evidence favorable to
the accused.  Key v. State, 325 Ark. 73, 76, 923 S.W.2d 865 867-68
(1996); Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992). 
Circumstantial evidence alone may constitute substantial evidence
when every other reasonable hypothesis consistent with innocence is
excluded.  Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). 
Once the evidence is determined to be sufficient to go to the jury,
the question of whether the circumstantial evidence excludes any
other hypothesis consistent with innocence is for the jury to
decide.  Key, supra; Hadley v. State, 322 Ark. 472, 910 S.W.2d 675
(1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993);
Lolla v. State, 179 Ark. 346, 15 S.W.2d 988 (1929).  The
credibility of the witnesses who testify in a criminal trial is a
matter for the jury to determine, and it may reject, in whole or in
part, the testimony of any witness, including the defendant, who is
the person most interested in the outcome of the trial.  Moore v.
State, 315 Ark. 131, 134, 864 S.W.2d 863, 865 (1993); Atkins v.
State, 310 Ark. 295, 302, 836 S.W.2d 367, 371 (1992); Zones v.
State, 287 Ark. 483, 702 S.W.2d 1 (1985).
     In the instant case the State proved that appellant's sister
lived within walking distance of the car lot from which the
Cadillac was taken; when the car was located, it was parked
directly in front of the apartment in which appellant lived; and
one of appellant's fingerprints was found on the rearview mirror
that was lying in the floor of the car.  
     Appellee informs us that many jurisdictions have held that the
State puts before the jury substantial evidence when it proves that
the defendant's fingerprints were found at the scene of the crime. 
See Annotation, Fingerprints, Palm Prints or Bare Footprints as
Evidence, 28 A.L.R.2d 1115, 1150-55 (1953 and Later Case Service). 
Arkansas has followed this trend.  In Tucker v. State, 50 Ark. App.
203, 901 S.W.2d 865 (1995), we reviewed our case law:
          Fingerprints, under some circumstances, may be
     sufficient to sustain a conviction.  See Brown v. State,
     310 Ark. 427, 837 S.W.2d 457 (1992) (fingerprints found
     both on exterior window glass and inside the structure);
     Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985)
     (fingerprint removed from exact place where robber was
     seen placing his hand as he vaulted into booth); Ebsen v.
     State, 249 Ark. 477, 459 S.W.2d 548 (1970) (fingerprints
     on both sides of a plate glass window that had been
     broken in and propped up inside the store).  However,
     fingerprints alone have been held to be insufficient. 
     See Standridge v. State, 310 Ark. 408, 837 S.W.2d 447
     (1992) (thumbprint found on disposable cup beside a tent
     that was several feet from marijuana plants is not enough 
     where there was no evidence to suggest when or where the
     appellant had touched the cup, whether he had purchased
     it, or how it came to be near the marijuana); Holloway v.
     State, 11 Ark. App. 69, 666 S.W.2d 410 (1984)
     (fingerprints on piece of glass located outside the house
     where a burglary occurred are not enough).

50 Ark. App. at 206-07; 901 S.W.2d   at 867.   The fingerprint on the
mirror, the proximity of the stolen Cadillac to the apartment in
which appellant was living, and the fact that appellant had
relatives living within walking distance of the car lot the
Cadillac was stolen from, considered together, constitute
sufficient evidence to support the jury's finding of guilt.   
     Appellant also argues that the trial court erred in departing
from the Arkansas Model Criminal Instructions.  During
deliberations the jury returned to the courtroom and asked:
     JUROR:  We have a question, sir.  We would like for you
     to explain in laymen's terms what you mean by exercised
     unauthorized control.

     THE COURT:  Let me see that instruction.  That simply
     means to use the automobile without the permission of the
     owner.

Appellant contends that with this instruction, the jury was not
required to find that he knew the car was stolen or that his
purpose was to deprive the owner of its property, but only had to
find that he had "use[d] the automobile without the permission of
the owner."  Appellant contends the jury was improperly instructed
and that gave the State a "much lessened burden from AMCI." 
Appellant admits that if the court had read the entire instruction
again, substituting "without the permission of the owner" for the
words, "exercised unauthorized control," he would be without this
argument.  He suggests, however, that because of what the court did
"the jury was given the very wrong impression that it only need
find that Ashe operated the car without the owner's permission and
need not find that appellant had knowledge and purpose to deprive
the owner thereof."
     In support of this argument appellant cites Cavin v. State,
313 Ark. 238, 855 S.W.2d 285 (1993), in which our supreme court
said:
          It is not error for the trial court to refuse to
     give a non-AMCI jury instruction if the other instruction
     given covered the issue.  See Williams v. State, 304 Ark.
     279, 801 S.W.2d 296 (1990); Henderson v. State, 284 Ark.
     493, 684 S.W.2d 231 (1985).  An instruction not included
     in AMCI should be given only when the trial judge finds
     that the AMCI instruction does not state the law or if
     AMCI does not contain a needed instruction on the
     subject.  Ventress v. State, 303 Ark. 194, 794 S.W.2d 619
     (1990).

313 Ark. at 249-50, 855 S.W.2d   at 291.  Appellant also cites
Donovan v. State, 26 Ark. App. 224, 764 S.W.2d 47 (1989), in which
this court said:
     Although the appellant argues that the instruction was
     unduly emphasized when the court did not repeat all the
     instructions, we do not agree.  We do agree that
     additional instructions must be used with care.  The case
     of Hicks v. State, 225 Ark. 916, 287 S.W.2d 12 (1956),
     cited by appellant, makes it clear that it is preferable
     to settle the instructions in chambers.  Moreover, Rush
     v. State, 239 Ark. 878, 395 S.W.2d 3 (1965), shows the
     danger of giving new or repeated instructions after jury
     deliberations have begun.  However, in McGaha v. State,
     216 Ark. 165, 224 S.W.2d 534 (1949), the court said:

               The trial court did not err in
          reinstructing on the degrees of homicide after
          the jury reported agreement on the question of
          defendant's guilt as to some offense.  It is
          within the province of the presiding judge to
          give further instructions when, in the
          exercise of proper discretion, he regards it
          necessary to do so in the furtherance of
          justice, and it is not always necessary in
          such cases that he should repeat the whole
          charge. (Citations omitted.)

     216 Ark. at 171-72. Also, in Wood v. State, 276 Ark. 346,
     635 S.W.2d 224 (1982), the court said:

               It is within the province of the
          presiding judge to recall the jury and [give]
          them further instructions when, in the
          exercise of a proper discretion, it is
          necessary to do so in the furtherance of
          justice.  Harrison v. State, 200 Ark. 257, 138 S.W.2d 785 (1940). It is not always necessary
          in such cases that he should repeat the whole
          charge. Harrison v. State, supra.

     276 Ark. at 349.  Furthermore, Rule 33.4 of the Arkansas
     Rules of Criminal Procedure provides, in part, as
     follows:

               (d) The judge may recall the jury after
          it has retired to deliberate and give it
          additional instructions in order to:

               (i) correct or withdraw an erroneous
          instruction;
               (ii) clarify an ambiguous instruction; or

               (iii) inform the jury on a point of law
          which should have been covered by the original
          instructions.

               (e) Should additional instructions be
          given, the judge in his discretion may allow
          additional argument by counsel.

          While McGaha and Wood, supra, approved additional
     instructions under situations where the jury had
     requested the instructions, and the appellate court found
     no error since the jury had indicated it understood all
     the other instructions, both opinions specifically state
     that it is not always necessary to repeat all the
     instructions.  Both opinions also say that additional
     instructions may be necessary in the furtherance of
     justice, and both opinions recognize that the real
     problem is the proper exercise of the trial court's
     discretion.

26 Ark. App. at 231-33, 764 S.W.2d   at 51.

     The appellee characterizes appellant's argument as an
assertion that by the way the trial court defined "exercised
unauthorized control," he so emphasized that part of the statutory
definition of theft of property that, in the minds of the jurors,
the rest of the definition of theft of property faded away, leaving
the theft of property a strict-liability offense that did not
require proof of a culpable mental state.  Appellee concedes that
appellant makes a very good argument that the trial court should
not have defined the term for the jury but should have reread the
entire statutory definition of theft of property.  Appellee argues,
however, that appellant has failed to preserve this argument for
appeal because appellant did not ask the court to give the entire
instruction.  The appellant must make known to the court the action
he wishes the court to take.  Dumond v. State, 290 Ark. 595, 599,
721 S.W.2d 663, 665 (1986) (citing Walker v. State, 280 Ark. 17,
20, 655 S.W.2d 370, 372 (1983)).  "It is the duty of a party
desiring relief to apprise the trial court of the proper basis upon
which he relies in order to preserve an issue for appeal."  Baker
v. State, 310 Ark. 485, 490, 837 S.W.2d 471, 473 (1992).  
     Appellee argues that appellant's second argument is also
procedurally barred because the only relief appellant requested was
a mistrial.  Mistrial is an extreme remedy that should only be
granted when justice cannot be served by continuing the trial.  A
mistrial is only appropriate when the error is beyond repair and
cannot be corrected by any curative relief.  A trial court has
broad discretion in granting or denying a motion for a mistrial,
and the trial court's decision will not be reversed absent abuse of
that discretion.  Cook v. State, 316 Ark. 384, 872 S.W.2d 72
(1994); Jiminez v. State, 24 Ark. App. 76, 749 S.W.2d 331 (1988). 
It was appellant's burden to request curative relief, and his
failure to request a limiting instruction cannot inure to his
benefit on appeal.  Haynes v. State, 311 Ark. 651, 846 S.W.2d 179
(1993); Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). 
If appellant had brought to the trial court's attention that he
wanted the jury to hear the entire theft-of-property instruction
again, as he argues on appeal, the judge probably would have done
that.  We cannot agree that the trial court's actions were an abuse
of discretion, particularly where appellant did not request the
judge to reinstruct the jury on the entire definition of theft of
property.
     On cross-appeal the State argues that the trial court erred in
reducing appellant's thirty-year sentence, which had been fixed by
the jury, to fifteen years.  The State is permitted to appeal the
imposition on a defendant of a sentence that was illegally imposed
by the circuit court.  See, e.g., State v. Rodriques, 319 Ark. 366,
891 S.W.2d 63 (1995); State v. Townsend, 314 Ark. 427, 863 S.W.2d 288 (1993); and State v. Freeman, 312 Ark. 34, 846 S.W.2d 660
(1993).  The State has the right to such appeals pursuant to
Arkansas Rules of Appellate Procedure--Criminal 4(b); (c) (1996)
(formerly codified as Arkansas Rule of Criminal Procedure 36.10(b);
(c)).  Moreover, in a criminal case the State is permitted to
pursue an appeal as a cross-appellant.  See, e.g.  Moore v. State,
321 Ark. 249, 258-61, 903 S.W.2d 154, 158-60 (1995) and State
v.Brown, 265 Ark. 41, 577 S.W.2d 581 (1979).
     Appellant was convicted of theft of property pursuant to Ark.
Code Ann.  5-36-103(b)(2) (Repl. 1993), a Class C felony. 
Arkansas Code Annotated section 5-4-401(a)(4) (Repl. 1993) sets the
sentence for a Class C felony at not less than three nor more than
ten years.  However, at the beginning of the penalty phase of the
trial, the prosecution entered evidence that appellant was a
habitual offender with five prior felony convictions.  Arkansas
Code Annotated section 5-4-501(b)(4) (Supp. 1995) provides that a
defendant who is convicted of a Class C felony after June 30, 1993,
and has four or more prior felony convictions may be sentenced to
a term of not less than three nor more than thirty years.  Thus,
the sentence of thirty years' imprisonment imposed by the jury was
within the statutory range of permissible sentences for someone
with more than four prior felony convictions who is convicted of a
Class C felony.
     After the jury recommended a sentence of thirty years in the
Arkansas Department of Correction, the trial court pronounced
sentence from the bench.  A formal, written judgment and commitment
order was filed on November 15, 1995.  On November 28, 1995,
appellant filed a motion for reduction of sentence, because "the
sentence is clearly too harsh for the crime for which this jury has
convicted him."  On December 13, 1995, the court, without a hearing
and without explanation, modified appellant's sentence, stating
simply:
          The Defendant's Motion for Judgment NOV and Motion
     for New Trial are denied, but the Defendant's Sentence of
     Thirty (30) years in the Arkansas Department of
     Correction and fine of five thousand dollars ($5,000) is
     hereby reduced to a term of fifteen (15) years in the
     Arkansas Department of Correction with credit for time
     served. 

     In response to the State's argument that the reduction of his
sentence was error, appellant argues that appellee did not preserve
this issue for appeal because no record was made of the hearing and
the prosecution did not object to the reduction of the sentence. 
The State responds in its reply brief that no hearing was held to
make a record of and that it did object to the reduction of
appellant's sentence when it filed an answer to appellant's motion. 
     The State may raise at any time the illegality of reducing a
sentence, and the issue of an illegal sentence may be raised for
the first time on appeal.  In Bangs v. State, 310 Ark. 235, 239,
835 S.W.2d 294 (1992), the Arkansas Supreme Court said, "[W]e treat
allegations of void or illegal sentences similar to problems of
subject matter jurisdiction in that we review such allegations
whether or not an objection was made in the trial court.  Howard v.
State, 289 Ark. 587, 715 S.W.2d 440 (1986).  A sentence is void
when the trial court lacks authority to impose it.  Id."  We also
find that the State, by filing its answer objecting to appellant's
motion for reduction of his sentence, reserved this issue for
appeal, particularly since the court granted the motion without
conducting a hearing.
     A criminal defendant is sentenced when the statutory authority
of a circuit court to reduce a sentence of imprisonment ends and
the constitutional authority of the Governor to grant clemency
begins.  Our case law tells us that a defendant is sentenced when
the trial judge enters a judgment and commitment order.  Hadley v.
State, 322 Ark. 472, 910 S.W.2d 675 (1995); Pannell v. State, 320
Ark. 250, 895 S.W.2d 911 (1995); Kelly v. Washington, 311 Ark. 73,
843 S.W.2d 797 (1992); Redding v. State, 293 Ark. 411, 738 S.W.2d 410 (1987); Wooten v. State, 32 Ark. App. 194, 799 S.W.2d 555
(1990).  A trial court is without jurisdiction to modify a sentence
once it has been put into execution.  DeHart v. State, 312 Ark.
323, 325, 849 S.W.2d 497, 499 (1993); Jones v. State, 297 Ark. 485,
763 S.W.2d 81 (1989); Toney v. State, 294 Ark. 473, 743 S.W.2d 816
(1987).  
     Once a defendant has been sentenced, any motion for reduction
of the length of the sentence is a request for clemency, Smith v.
State, 262 Ark. 239, 555 S.W.2d 569 (1977), which is reserved to
the Governor, Ark. Const. art. 6  18.  In Shelton v. State, 44
Ark. App. 156, 160, 870 S.W.2d 398, 400 (1994), we noted that the
Arkansas Supreme Court has been very careful to consider the
separation of powers when reviewing the authority of trial courts
to reduce a defendant's sentence.  Because of the power to pardon
held by the Governor, courts have no authority to reduce a
defendant's sentence on the basis that it is unduly harsh.  Parker
v. State, 302 Ark. 509, 790 S.W.2d 894 (1990); Coones v. State, 280
Ark. 321, 657 S.W.2d 553 (1983); Rogers v. State, 265 Ark. 945, 582 S.W.2d 7 (1979); Abbott v. State, 256 Ark. 558, 508 S.W.2d 733
(1974). 
     In Parker the Arkansas Supreme Court said:
     In the past this court did reduce sentences.  Carson v.
     State, 206 Ark. 80, 173 S.W.2d 122 (1943).  We later
     decided that such an action was wrong because it violated
     the separation of powers doctrine.  Osborne v. State, 237
     Ark. 5, 371 S.W.2d 518 (1963).  There we decided that the
     power to exercise clemency is vested, not in the courts,
     but in the chief executive.  Since then we have uniformly
     held that the sentence is to be fixed by the jury and not
     by this court.  If the testimony supports the conviction
     for the offense in question and if the sentence is within
     the limits set by the legislature, we are not at liberty
     to reduce it even though we think it unduly harsh.  Id.
     at 7, 371 S.W.2d   at 520.

302 Ark. at 512, 790 S.W.2d   at 895.

     As stated in Coones, supra:

          In Williams, Standridge & Deaton v. State, 229 Ark.
     42, 313 S.W.2d 242 (1968), we recognized that:

          The great weight of authority supports the
          rule that when a valid sentence has been put
          into execution, the trial court cannot modify,
          amend, or revise it in any way either during
          or after the term or session of the court at
          which the sentence was pronounced; any   
          attempt to do so is of no effect and the
          original sentence remains.

          We reiterated this rule in the recent cases of
     Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983); and
     Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983),
     where we said that, "Once a valid sentence is put into
     execution the trial court is without jurisdiction to
     modify, amend or revise it."  To the same effect are
     Shipman v. State, 261 Ark. 559, 550 S.W.2d 454 (1977);
     and Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005
     (1928).  In Emerson we recognized "the rule, well
     established, that where the defendant has entered upon
     the execution of a valid sentence, the court loses
     jurisdiction over the case."

280 Ark. at 322-23, 657 S.W.2d   at 555.  And Abbott v. State, supra,
says:
     Appellant also contends that the sentences are excessive
     and a deterrent to his rehabilitation.  The state, in its
     brief, reminds us that we have held that review of
     sentences which are not in excess of statutory limits is
     not within the jurisdiction of this court because the
     exercise of clemency is a function of the executive
     branch of the government under Art, 6, Sec. 18 of the
     Arkansas Constitution, and this court is not at liberty
     to reduce a sentence within statutory limits, even though
     we might think it unduly harsh.  Osborne v. State, 237
     Ark. 5, 371 S.W.2d 518. See also, Hurst v. State, 251
     Ark. 40, 470 S.W.2d 815.

256 Ark. at 562, 508 S.W.2d   at 733.  
     Appellant also argues that the sentencing statutes do not
prohibit discretion of judges to reduce sentences and cites Ark.
Code Ann.  16-90-111 (1987).  That statute is entitled "Fixing of
punishment -- Correction of illegal sentence -- Reduction of
sentence" and provides in its entirety:
       (a) Any circuit court, upon receipt of petition by the
     aggrieved party for relief and after the notice of the
     relief has been served on the prosecuting attorney, may
     correct an illegal sentence at any time and may correct
     a sentence imposed in an illegal manner within the time
     provided in this section for the reduction of sentence.

       (b)(1) The court may reduce a sentence within one
     hundred twenty (120) days after the sentence is imposed
     or within one hundred twenty (120) days after receipt by
     the court of a mandate issued upon affirmance of the
     judgment or dismissal of the appeal.

       (2) The court may also reduce a sentence upon
     revocation of probation as provided by law.
     This statute is not applicable in the instant case.  It
pertains, as the title states, only to illegal sentences.  In
Peterson v. State, 317 Ark. 151, 153, 876 S.W.2d 261 (1994), our
supreme court held that Ark. Code Ann.  16-90-111 (1987) provides
a narrow remedy whereby the trial court may correct an illegal
sentence at any time, and may correct a sentence imposed in an
illegal manner within 120 days after a guilty plea.  An illegal
sentence is a sentence that is illegal on its face.  Lovelace v.
State, 301 Ark. 519, 520, 785 S.W.2d 212 (1990); Abdullah v. State,
290 Ark. 537, 720 S.W.2d 902 (1986).  Cothrine v. State, 322 Ark.
112, 907 S.W.2d 134 (1995), held that Ark. Code Ann.  16-90-111
(Supp. 1991), which permits the trial court to correct a sentence
imposed in an illegal manner within 120 days after the receipt of
the affirming mandate of the appellate court and which permits an
illegal sentence to be corrected at any time, is in conflict with
Ark. Crim. P. Rule 37.  See also, Petree v. State, 323 Ark. 570,
920 S.W.2d 819 (1995), and Smith v. State, 321 Ark. 195, 900 S.W.2d 939 (1995). 
     Appellant's original sentence was within the statutory range
of permissible sentences for someone convicted of a Class C felony
who has more than four prior felony convictions.  Therefore, his
sentence is modified to reinstate the original sentence recommended
by the jury: thirty years in the Arkansas Department of Correction
and a five thousand dollar ($5,000) fine.
     Affirmed on direct appeal.  Reversed on cross appeal and
modified.
     Stroud and Jennings, JJ., agree.
     Cooper, Neal, and Crabtree, JJ., dissent.

                James R. Cooper, Judge, dissents.




     I dissent because I believe that there was insufficient
evidence to convict the appellant of theft.
     The State was required to prove that the appellant knowingly
took or exercised control over the auto with the purpose of
depriving the owner thereof.  See Ark. Code Ann.  5-36-103 (Supp.
1995).  The State did prove that a twelve-year-old auto was stolen
from a used car lot within a few blocks of where the appellant's
sister lived, that the auto was found nearly two months later in
the parking lot of the apartment complex where the appellant lived,
and that a detached rearview mirror found on the passenger side
front floorboard bore the appellant's fingerprint.
     The State's evidence is wholly circumstantial.  As such, it
will provide substantial evidence only if it excludes every other
reasonable hypothesis.  Although this is a question for the fact-
finder to determine, the fact-finder must not be left to
speculation and conjecture; two equally reasonable conclusions
regarding what occurred merely give rise to a suspicion of guilt,
and that is insufficient as a matter of law to sustain a criminal
conviction.  Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996);
Reams v. State, 45 Ark. App. 7, 870 S.W.2d 404 (1994).
     Every essential element of the offense must be established by
substantial evidence.  See Ward v. Lockhart, 841 F.2d 844 (1988). 
But where is the evidence that the appellant "knowingly took or
exercised control over" the auto in the case at bar?  Although the
evidence might perhaps be sufficient to show that the appellant had
been a passenger in the auto, there is nothing to indicate that he
took or exercised control over it.  The majority places great
reliance on the single fingerprint found on the detached rearview
mirror, and declares that Arkansas has followed a trend toward
considering the presence of a defendant's fingerprints at a crime
scene to be substantial evidence per se.  This is a misstatement of
the law.  The presence of fingerprints may or may not establish
whether an offense has been committed, depending upon the elements
of the offense charged and the circumstances of the particular
case.  See Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865
(1995).
     For example, in Smith v. State, 34 Ark. App. 150, 806 S.W.2d 391 (1991), we held that twelve fingerprints on an automobile were
insufficient to sustain a conviction for theft by receiving where
the vehicle was parked in a place accessible to the general public
and no one had seen the appellant in control of, or even inside,
the vehicle.  In the case at bar, the appellant was convicted of
the greater offense of theft on similar evidence, and I dissent.
     Neal and Crabtree, JJ., join in this dissent.