Larry Don Foster v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-590

March 2 , 2005

LARRY DON FOSTER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

APPEAL FROM DREW COUNTY CIRCUIT COURT

[NO. CR 2003-111-3]

HON. ROBERT BYNUM GIBSON JR., CIRCUIT JUDGE

AFFIRMED

Andree Layton Roaf, Judge

Larry Don Foster was convicted of delivery of cocaine and sentenced to forty years in the Arkansas Department of Correction. During the trial, the court allowed the State to cross-examine Foster about a prior commercial burglary conviction, holding that the crime involved dishonesty. On appeal, Foster argues that the trial court erred in admitting evidence of this conviction because the court did not determine whether the probative value of admitting the evidence outweighed its prejudicial effect pursuant to Rule 609 of the Arkansas Rules of Evidence. We affirm.

The charge in this case arose out of an April 8, 2003 controlled drug transaction involving Foster and a confidential informant employed by agents of the Tenth Judicial District Drug Task Force. The State submitted a videotape of the transaction into evidence at trial, and the Chief of Police identified Foster as the person on the tape. Foster, nevertheless, maintained that he was not the individual on the tape.

Foster testified at trial, and the trial court allowed the State to introduce evidence of Foster's prior convictions, including several forgery convictions and a commercial burglary conviction.

Foster's attorney attempted to make some type of "Rule 609 motion," but the record does not reflect any specific motion to exclude any convictions. The trial court ruled that the forgery convictions as well as the commercial burglary conviction involved dishonesty and were admissible pursuant to Arkansas Rule of Evidence 609 (2004). Foster attempted to make a motion, but he was interrupted by the prosecuting attorney and the trial judge. It is apparent from the record that the judge and prosecuting attorney understood the substance of Foster's motion. Moreover, the judge even ruled on the motion and allowed the commercial burglary conviction to come in. Foster therefore preserved his argument for appellate review.

On appeal, Foster argues that the trial court erred in allowing the State to cross-examine him regarding a previous conviction of commercial burglary and to submit evidence of this burglary because the trial court failed to determine whether the probative value of admitting the evidence was outweighed by its prejudicial effect as required by Rule 609 of the Arkansas Rules of Evidence.

When a defendant in a criminal case testifies in his own behalf, his credibility is placed in issue, and the State may impeach his credibility by introducing evidence of prior felony convictions pursuant to Rule 609. Schalski v. State, 322 Ark. 63, 907 S.W.2d 693 (1995). The trial court has considerable discretion in determining whether the probative value bearing on credibility of a prior conviction outweighs its prejudicial effect, and this court does not reverse that decision absent an abuse of discretion. Id. No balancing test, however, is required for prior convictions involving crimes of dishonesty. See id. Conflicting opinions exist as to whether burglary and theft convictions are crimes involving dishonesty. In Floyd v. State, 278 Ark. 86, 643 S.W.2d 555 (1982), our supreme court held that prior burglary and theft convictions were crimes involving dishonesty, and they were admissible without the balancing test. In Ellison v. State, 354 Ark. 340, 123 S.W.3d 874 (2003), our supreme court held that "an absence of respect for the property rights of others, though an undesirable trait, does not directly indicate an impairment of the trait of truthfulness." Id. (citing Watkins v. State, 320 Ark. 163, 895 S.W.2d 532 (1995)); see also Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997). However, even if the trial court did make a mistake in admitting the commercial burglary conviction into evidence without a balancing test, the error was harmless. Foster fails to show how he was prejudiced by the admission of his commercial burglary conviction. When the evidence of Foster's conviction is considered in the absence of the commercial burglary conviction, there is still abundant evidence that Foster was delivering cocaine, including a videotape of the actual drug delivery. "Where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm." Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002).

Affirmed.

Robbins and Griffen, JJ., agree.