Thurman Russell and Carolyn Russell v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION I

CACR00-494

DECEMBER 6, 2000

THURMAN RUSSELL AND APPEAL FROM THE BAXTER

CAROLYN RUSSELL COUNTY CIRCUIT COURT

APPELLANTS [C99-181]

v.

HONORABLE ROBERT W.

STATE OF ARKANSAS MCCORKINDALE, II, CIRCUIT

APPELLEE JUDGE

AFFIRMED

The appellants in the case at bar are husband and wife. Following a jury trial held January 24, 2000, the appellants were convicted of criminal trespass and sentenced to thirty days in jail and a $100 fine. On appeal, appellants argue that the trial court erred in not ordering a directed verdict of not guilty sua sponte, and that the trial court erred in denying their objections to testimony concerning prior litigation between the parties.

At trial, Garry Kelton testified that he lives at 11372 Highway 62 East in Henderson, Arkansas. Kelton testified that he purchased his home from the appellants and that he was financing the purchase of an RV and boat storage business from the appellants. He testified that the RV and boat storage business and the house are adjoined on the same property. Kelton testified that on February 12, 19991, he was attempting to erect a sign advertising the business when he noticed the appellants pull off the side of the road near the property. He then observed appellant Carolyn Russell get out of her vehicle, walk to the area of the property where he had flat bed trailers for sale by the highway, and look around for a "little logo" showing where he had obtained the flat bed trailers. He testified that the appellants wanted to take pictures of any logos in order to have someone pick up the flat bed trailers to keep him from selling them. Kelton testified that he told Carolyn several times to leave the property, but Carolyn became hostile toward him. At some point during their confrontation, Kelton testified that Carolyn pushed him and he pushed her back. Kelton testified that appellant Thurman Russell then exited his truck and began to threaten him. Kelton stated that both of the appellants came onto the property during this time.

Prior to the criminal charges being filed in this case, the appellants admitted that the parties had entered into a leasing agreement with option to purchase the RV business in early 1998. Under the leasing agreement, appellants were named the lessors of the property and Kelton was one of two lessees. An agreement was later reached between the parties that allowed the appellants to come onto the property and inspect the property at reasonable intervals, times, and with notice. Kelton testified that on February 12, 1999, the appellants did not give him any notice of their visit on the property. Carolyn Russell testified that she did not give Kelton notice of her arrival on the property because Kelton did not answer thetelephone when she called him that day. Thurman Russell testified that he interpreted "reasonable notice"as allowing a person to go to the property during daylight hours.

Appellants first argue that the trial court erred in not ordering a directed verdict of not guilty sua sponte. During their trial, the appellants did not move for a directed verdict at the close of the State's case and at the close of all of the evidence. At the end of trial, the jury deliberated and found the appellants guilty of criminal trespass.

Arkansas Rule of Criminal Procedure 33.1 provides in relevant part:

(a) In a jury trial, if a motion for directed verdict is made, it shall be made at the close of all of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.

. . . .

Failure to challenge the sufficiency of the evidence at both the close of the State's case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict. Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996).

The appellants concede on appeal that they did not move for a directed verdict as required by Rule 33.1. Nonetheless, appellants argue that the trial court should have directed a verdict of not guilty sua sponte. In support of their argument, appellants contend that, as a matter of law, there was insufficient evidence to support their convictions because they were leasing the property to Kelton and had specific privileges to inspect the premises leased by Kelton at reasonable intervals, times, and with notice. We must note, however, that the appellate court will not consider the merits of an argument if the appellant fails to cite anyconvincing legal authority in support of that argument. Womack v. Foster, 340 Ark. 124, 8 S.W.3d 854 (2000). Here, appellants have recited no authority which states that the trial court was obligated to direct a verdict of not guilty sua sponte. Indeed, our supreme court has stated that "Rule 33.1 of the Arkansas Rules of Criminal Procedure requires that a defendant in a jury trial move for a directed verdict on insufficiency of the evidence at the conclusion of the State's case and again at the close of the case." Diemer v. State, 340 Ark. 223, 226-227, 9 S.W.3d 490 (2000). Consequently, appellants' challenge to the sufficiency of the evidence regarding the elements of criminal trespass is not preserved for appellate review.

For their second point on appeal, the appellants argue that the trial court erred in denying their objections to testimony concerning prior litigation between the parties.

At trial, Kelton was allowed to testify, over appellants' objection, regarding the outcome of a previous civil litigation filed by the appellants against Kelton. The civil litigation involved an alleged breach of contract involving the same property at issue in this criminal case. In response to the appellants' hearsay objection regarding Kelton's testimony, the prosecutor stated that the purpose of asking Kelton about the outcome of the prior case was to "simply show motive."

Arkansas Rule of Evidence Rule 404 (b) allows evidence of other acts to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). The admission or rejection of evidence under 404 (b) is left to the sound discretion of the trial court and willnot be disturbed on appeal absent a manifest abuse of discretion. Johnson v. State, 337 Ark. 477, 989 S.W.2d 525 (1999). Furthermore, under the res gestae exception, the State is entitled to introduce evidence showing all circumstances that explain the charged act, show a motive for acting, or illustrate the accused's state of mind if other criminal offenses are brought to light. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000).

In this case, testimony regarding the outcome of the previous civil litigation between Kelton and the Russells was necessary to show all of the circumstances involved in this case. Kelton testified that prior to the events involved in this case, the appellants were told by the trial court in the civil litigation that Kelton had not breached a contract entered into between the Russells and Kelton. Therefore, it is apparent that the outcome of the civil litigation showed a motive for the Russells to act on February 12, 1999, especially in light of Carolyn's testimony that she and her husband had gone to the property to take pictures of the flat bed trailers based on their assumption that Kelton had violated the lease agreement by having the trailers on the property.

Furthermore, appellants have not shown that they were prejudiced by Kelton's testimony when Carolyn, herself, informed the trial court of the outcome of the prior civil litigation. During cross-examination, Carolyn stated, "we all went to court and [Kelton] testified that the court said that he was not in breach from selling propane on the property. The court said they didn't see any inconsistent use of the property." This court has previously stated that where appellant allowed other witnesses to offer the same testimony without objection, he has demonstrated no prejudice and the appellate court will not reverseabsent demonstrated error. Biniores v. State, 16 Ark. App. 275, 701 S.W.2d 385 (1985).

Based on the foregoing, we affirm the appellants' convictions.

Affirmed.

Robbins, C.J., and Hart, J., agree.

1 Kelton's testimony recites February 12, 1999, as the date that the criminal charge was committed by the appellants. However, the criminal information filed by the State reflects that the criminal offense was committed on February 9, 1999.