Kalin Leashawn Spencer v. State of Arkansas
Annotate this Case
Download PDF
ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
KAREN R. BAKER, JUDGE
DIVISION I
CACR06-1149
KALIN LEASHAWN SPENCER
APPELLANT
v.
JUNE 13, 2007
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT
[CR 00-3291, CR 03-1289, CR 05-4511]
STATE OF ARKANSAS
APPELLEE
HONORABLE TIMOTHY DAVID FOX,
JUDGE
AFFIRMED
A Pulaski County jury convicted appellant Kalin Leashawn Spencer of residential burglary
and theft of property. The jury sentenced him, as a habitual offender, to eighteen years in the
Department of Correction. The trial judge also revoked appellant’s probation sentences for two
prior criminal offenses. On appeal, appellant asserts two points of error. First, he asserts that the
circuit court erred in denying his directed-verdict motions regarding his burglary and theft-ofproperty convictions alleging that the State failed to introduce substantial evidence of appellant’s
identity as the perpetrator. Second, he argues that the trial court erred in granting the State’s
probation-revocation petitions. We find no error and affirm.
A review of the record indicates that at no time during the trial did appellant raise the issue
of an identification insufficiency. Defense counsel’s arguments at the close of the State’s case, and
again at the close of all the evidence, were based upon the insufficiency of the evidence to establish
the value of the stolen property. A motion for a directed verdict based on insufficiency of the
evidence must specify the respect in which the evidence is deficient. Ark. R. Crim. P. 33.1 (c). The
requirement of specificity is to advise the trial court of exactly how the evidence is deficient. Pratt
v. State, 359 Ark. 16, 194 S.W.3d 183 (2004). Arguments not raised at trial will not be addressed
for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but
are bound on appeal by the scope and nature of the objections and arguments presented at trial.
Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). Therefore, appellant’s first argument
is not preserved.
For his second argument, appellant alleges that the trial court erred in granting the State’s
probation-revocation petitions. This argument is based upon his contention that insufficient
evidence supports the identification of him as the perpetrator of the residential burglary and theft.
We will uphold a trial court’s probation-revocation determination unless the decision is
clearly against the preponderance of the evidence. See Bradly v. State, 347 Ark. 518, 65 S.W.3d 874
(2002). Because the determination of a preponderance of the evidence turns on questions of
credibility and weight to be given to the testimony, we defer to the trial judge’s superior position
in credibility determinations. Id. To revoke probation, the trial court must find by a preponderance
of the evidence that the probationer inexcusably violated a condition of that probation. Id.
On review, we hold that a preponderance of the evidence supports the trial court’s revocation
of appellant’s probation. On October 23, 2000, appellant pled guilty to theft of property and
received five years’ probation. Five months later, the State filed a petition to revoke that probation
because appellant tested positive for drug use and failed to report. The appellant pled guilty to the
probation violation and was returned to his original sentence, plus additional community service and
time in jail. In June 2002, the State filed a petition to revoke appellant’s probation because he twice
-2-
tested positive for marijuana use, failed to perform any community service, and failed to pay
supervision fees. Again, appellant pled guilty to the probation violation; and again, he was returned
to his original probation sentence plus additional community service and random drug screens.
Approximately eight months later, a third petition for probation revocation was filed because
appellant committed the offense of battery among other probation violations. The appellant pled
guilty to the probation violations and was continued on probation.
In July 2003, the appellant pled
guilty to second-degree battery and was placed on three years’ probation.
In November of 2005, the State petitioned to revoke appellant’s probation on the ground that
he committed the offenses of residential burglary and theft of property in the present case. This
revocation hearing was consolidated with the burglary and theft trial. At the close of all the
evidence and while the jury was deliberating in appellant’s burglary and theft trial, the trial court
conducted a hearing addressing the probation revocation. In addition to the evidence presented in
the jury trial, the trial court heard testimony from appellant’s probation officer. Acting as the factfinder, the trial court reviewed the credibility of the witnesses and the weight of all the evidence that
appellant violated his probation conditions and revoked his probation in both cases.
The evidence presented at trial established that on August 5, 2005, the home of Jessica and
Robert Watson was broken into while they were away on a camping trip. That same night, not
knowing that the Watsons were away, the Watsons’ friend, Dewayne Taylor, stopped by their home
to visit them. As he opened the Watsons’ front door, Taylor surprised a man coming from a back
room of the house. The man was carrying some items including a shotgun and a paintball gun.
Taylor asked the man who he was and where the Watsons were. The man told him that the Watsons
were camping and that he was “Robert’s homeboy.” Taylor thought the situation was strange, so
as he left he took a close look at the old pick-up truck in the driveway. He knew that the truck did
-3-
not belong to the Watsons, but he recognized it from the neighborhood. In the back of the truck he
saw a speaker box and another smaller black box that looked like a radio or stereo. Taylor
immediately attempted to call the Watsons on his cell phone, but when he failed to reach them and
after waiting a few minutes in hopes of a call-back, he went home.
The Watsons returned the next day to find a window in the front of their house broken and
the interior in disarray. They noticed immediately that their stereo and Play Station video game
system were missing from the living room entertainment center. Further investigation revealed that
a TV/DVD player, a shotgun and paintball gun were missing.
The day after the burglary, Taylor realized that the man he had seen at the Watsons’ was
someone he had known a couple of years earlier. Later, at the police station, Taylor was presented
with a photo lineup. He unequivocally identified appellant as the man he had seen removing items
from the Watsons’ home. At trial Taylor again identified appellant in open court as the man he had
seen in the Watsons’ home.
Appellant’s identity argument is based on a factual determination that falls squarely within
the province of the fact finder. Appellant relies on dicta in Synoground v. State, 260 Ark. 756, 543
S.W. 2d 935 (1976), for the proposition that eyewitness testimony is unreliable. However, that did
was not the holding of the case. See Synoground, 260 Ark. at 760, 543 S.W. 2d at 936. Rather, the
case “held that patently unreliable identification testimony should be excluded.” Stewart v. State,
88 Ark. App. 110, 112, 195 S.W.3d 385, 387 (2004). In Synoground, the pretrial photoidentification was held to be impermissibly suggestive where a photograph differed from the others
in the lineup, and the witness later used the pretrial identification to assist him with the in-court
identification.
Synoground, 260 Ark. at 761-62, 543 S.W. 2d at 937.
Unlike the witness in
Synoground, here Taylor was acquainted with appellant prior to their encounter in the Watsons’
-4-
residence, and made an unequivocal pretrial identification of appellant in a photo-lineup followed
by an in-court identification. He testified that he observed appellant with certain stolen items in his
arms inside the home and saw other items in appellant’s truck parked outside the Watsons’
residence.
Given this evidence, we find no error in the trial court’s revocation of appellant’s probation.
Affirmed.
BIRD and VAUGHT , JJ., agree.
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
