Henry Alexander Harmon v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION I

HENRY ALEXANDER HARMON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-369

NOVEMBER 29, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 99-1301]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Pulaski County Circuit Court convicted the appellant, Henry Harmon, of theft of property valued at $2,500 or more and also found him guilty of fleeing. The offenses were merged for the purposes of sentencing. The jury sentenced appellant as an habitual offender to a total of thirty-five years' imprisonment and fined him $1,000. On appeal, appellant challenges the sufficiency of the evidence as to both of his convictions.

For appellant's first point on appeal, he claims that the State failed to prove that the value of the car he stole was $2,500 or more. The defense made the following directed-verdict motion at trial:

At this time, I would make a motion for a directed verdict based on sufficiency of the evidence, that the State has not made a prima facie case that Henry Harmon committed the crime of theft of property on January the 16th, 1999, by either lawfully, feloniously, or knowingly taking or exercising control over property having a value of $2,500 or more, such property belonging to Byron

Embry, with the purpose of depriving Mr. Embry thereof. I simply do not believe that the State has met their burden with Mr. Embry's eyewitness testimony, your Honor.

Arkansas Rule of Criminal Procedure 33.1 states in pertinent part:

A motion for directed verdict or dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

A general motion is insufficient to preserve a defendant's argument that the statutory elements of his crime were not proved. Stewart v. State, 326 Ark. 813, 935 S.W.2d 530 (1996). Here, defense counsel merely read the statutory description of the offense of theft of property in its entirety. Appellant failed to specifically apprize the trial court of his argument that the State failed to prove the requisite value of the stolen vehicle. The reference to the victim's "eyewitness testimony" also did not serve to apprize the trial court that counsel was questioning the testimony concerning the value of the vehicle. The "eyewitness" testimony offered by the victim at trial was that he witnessed his vehicle being stolen and recognized appellant as the thief. Appellant's general motion was insufficient to preserve his argument that the value of the stolen vehicle was not proved. See Stewart v. State, 320 Ark. 75, 894 S.W.2d 530 (1996).

For appellant's second point on appeal, he contends that the State failed to introduce sufficient evidence that he committed Class A misdemeanor fleeing. Appellant argues that the State failed to introduce any evidence that appellant caused property damage as a directresult of fleeing or that he fled by means of a vehicle or conveyance. The State responded to this argument by conceding that neither the proof nor the court's instructions permitted a conviction for fleeing as a Class A misdemeanor. The State claims that the evidence does support a reduction of the offense to a Class C misdemeanor.

The jury instruction contained the elements of fleeing as a Class C misdemeanor pursuant to Ark. Code Ann. § 5-54-124(a),(c) (Repl. 1997). In order for fleeing to be a Class A misdemeanor, the State must prove that property damage occurred as a result of the fleeing on foot, or that the accused fled by means of a vehicle or other conveyance. Ark. Code Ann. § 5-54-125(c)(2),(d). Although the court instructed the jury as to the Class C misdemeanor fleeing, it submitted to the jury a verdict form for fleeing as a Class A misdemeanor. The jury found appellant guilty of fleeing as a Class A misdemeanor.

The State concedes and we agree that it proved no more than Class C misdemeanor flight at trial. Nevertheless, we conclude that any error in this regard is harmless. The court's judgment of conviction shows the section of the form judgment relating to fleeing was crossed out by the trial judge and the handwritten comment "merged" appears at the top of the paragraph. Appellant concedes that no prejudice would result unless his theft conviction were to be reversed. As we are affirming the conviction for theft of property and, there was no separate conviction entered for the misdemeanor, any error with regard to the Class A misdemeanor fleeing charge is not prejudicial. We do not reverse for non-prejudicial error.

Affirmed.

Jennings and Roaf, JJ., agree.