William Earl Cutts v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

WILLIAM EARL CUTTS

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR05-858

March 1, 2006

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FIFTH DIVISION [CR 04-3141, CR 04-3415]

HONORABLE WILLIAM PROCTOR, JR., CIRCUIT JUDGE

AFFIRMED AS MODIFIED

David M. Glover, Judge

William Earl "Willie" Cutts was convicted in a bench trial of one count of failure to register as a sex offender and two counts of theft by receiving, one count involving his girlfriend's automobile and the other count involving his girlfriend's credit card. He argues on appeal that there was not substantial evidence to convict him for failure to register as a sex offender or for theft by receiving with respect to the automobile.1 We affirm as modified.

When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence, direct or circumstantial, to support the verdict. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). Evidence is substantial when it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Harris, supra.

Cutts first argues that the State did not prove that he failed to notify the Arkansas Crime Information Center (ACIC) no later than five days after he established residency at a new address. Arkansas Code Annotated section 12-12-904(a)(1) (Repl. 2003) provides, "A person who fails to register or who fails to report changes of address, employment, education, or training, or who refuses to cooperate with the assessment process as required under this subchapter shall be guilty of a Class D felony." Subsection (a)(2) of this section provides that

it is an affirmative defense to prosecution if the delay in reporting a change of address was caused by an eviction; . . . ; or any other unforeseen circumstance; and the person provides the new address to the Arkansas Crime Information Center in writing no later than five business days after the offender establishes residency.

The State argues, and we agree, that Cutts's argument is barred because he has changed his argument on appeal. Cutts argued below that there was "no proof that he was ever notified of a change of address or asked to verify his address where he actually signed for the notice and received it," and he argues on appeal that the State failed to introduce sufficient evidence that he failed to notify ACIC no later than five business days after he established residency at a new address. A party cannot change the grounds for an objection or argument on appeal, but is bound by the scope and nature of the arguments made at trial. Linn v. State, 84 Ark. App. 141, 133 S.W.3d 407 (2003). Cutts did not raise the argument he now makes on appeal to the trial court; therefore, it is not preserved for our review.

Nevertheless, if we were to reach the merits of Cutts's argument, we would affirm. Arkansas Code Annotated section 12-12-909(a)(1)(A) (Repl. 2003) provides that every six months after a sex offender's initial registration during the period in which the person must register, ACIC will mail a nonforwardable verification form to the last reported address of the sex offender; the offender shall return the verification form in person to the local law-enforcement agency within ten days of receipt of the form; the verification form shall be signed by the offender and shall state that he still lives at the residence last reported; and if the offender fails to return the verification form within ten days of receipt, he shall be in violation of this subchapter.

At trial, Little Rock Police Officer Angela Merritt testified that she had contact with Cutts on June 18, 2004, at 7500 South University Avenue, Room 106. She stated that a change of address form was completed at that time, although Cutts was too impaired to sign it.

Little Rock Police Detective Jennifer Hurd testified that she worked on a failure-to-register case involving Cutts during April 2004. She said that Cutts's last known address was 1004 Forester Cove in Little Rock (Cutts's girlfriend's house) and that on April 23, 2004, she received a sex-offender address-unknown notice from ACIC. Hurd testified that she sent a certified letter to Cutts at the Forester Cove address, but that it was returned unclaimed. She then obtained a warrant for Cutts, and she said that her department did not hear anything from Cutts until he was arrested at the University Avenue address.

On appeal, Cutts argues that his girlfriend threw him out of her house, and the State never proved when he established residency at the University Avenue address. However, the officers' testimony indicates that Cutts's address was unknown from at least the end of April 2004, when Officer Hurd sent the certified letter to Cutts, until he was found at the University Avenue address on June 18, 2004, which is definitely more time than is allowed under the statute, even if Cutts was forced to change his address due to unforeseen circumstances contemplated by Arkansas Code Annotated section 12-12-904(a)(2).

Cutts also argues that there was insufficient evidence to support his conviction for theft by receiving with respect to a vehicle. The automobile in question was Cutts's former girlfriend's 1985 Cadillac. His former girlfriend, Sunya Alexander, testified that she had been letting Cutts use the automobile to get back and forth to work since approximately April 4, 2004, when he was paroled from the Arkansas Department of Correction and moved to her residence. She said that she had reported her automobile stolen in the past when Cutts had it. In this case, she testified that Cutts borrowed the automobile on June 3, 2004, stating that he would be back in a "couple of hours." Alexander reported the automobile stolen on June 4 when Cutts had not returned it and had not called her. When police stopped Cutts on June 5, 2004, for a traffic violation, he was driving the Cadillac. Alexander said that when she went to pick up the automobile, it was "trashed out," the windows were off track, and the glove box was broken.

The State contends that this argument is not preserved because Cutts has changed his argument on appeal. We hold that Cutts's argument is preserved. In his directed-verdict motion below, Cutts's attorney argued, "I think he had permission to use the car. He had been using it for quite a while, Your Honor. I don't think that the State has proved that - he had possession of it. At the most, I think it would be unauthorized use ofa vehicle, Your Honor." In the last paragraph of his argument, Cutts contends, "All the State proved Appellant Cutts did was borrow the automobile for a longer time than he told Ms. Alexander he was going to borrow the automobile for. A defendant's overlong borrowing of an automobile from a household member does not constitute proof of the defendant's intent to deprive the owner of the automobile."

A person commits the offense of theft by receiving if he "receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen." Ark. Code Ann. § 5-36-106(a) (Repl. 2006). Cutts argues that at most, he was guilty of borrowing the automobile for a longer period of time than originally intended, and that he did not intend to deprive Alexander of the automobile. In support of his argument, Cutts points out that there was no proof that he had taken the automobile out of Little Rock, that he had tried to sell it, or that he ever asserted any ownership in the automobile.

In support of his contention, Cutts cites Greer v. State, 77 Ark. App. 180, 72 S.W.3d 893 (2002), a case in which the appellant took his mother's automobile from their home without permission and was convicted of felony theft. On appeal, this court reduced the conviction from felony theft to unauthorized use of a motor vehicle, a Class A misdemeanor. A person commits unauthorized use of a vehicle "if he knowingly takes, operates, or exercises control over another person's vehicle without consent of the owner." Ark. Code Ann. § 5-36-108(a) (Repl. 2006).

Although Greer involved felony theft and not theft by receiving, we find the reasoning in that case instructive in the present case. Here, Alexander allowed Cutts, her live-in boyfriend, to use her automobile on a regular basis, and she testified that Cutts had used her automobile and not returned it on several occasions. Furthermore, Cutts initially did have permission to use the automobile on June 3 for a few hours. We hold that the trial court's judgment of theft by receiving on these facts was not supported by substantial evidence, and we reduce Cutts's conviction to the Class A misdemeanor of unauthorized use of a motor vehicle.

Affirmed as modified.

Bird and Crabtree, JJ., agree.

1 Cutts does not appeal his conviction for theft by receiving with regard to the credit card.