Higgins v. State

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Kacy HIGGINS v. STATE of Arkansas

CR 96-62                                           ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 23, 1996


1.   Motions -- denial of directed verdict -- factors on review. --
     A motion for directed verdict is a challenge to the
     sufficiency of the evidence; the test is whether the verdict
     is supported by substantial evidence, direct or
     circumstantial; substantial evidence is evidence of sufficient
     certainty and precision to compel a conclusion one way or
     another; on appeal the court reviews the evidence in the light
     most favorable to the appellee. 

2.   Conversion -- substantial evidence existed that appellant did
     not operate in good faith -- doctrine of equitable conversion
     inapplicable. -- Where the offer and acceptance for the sale
     of the property was unclear on precisely what acreage was
     included, evidence by the State showed that appellant knew he
     had no ownership interest in the 1.1 acre tract where much of
     the timber was cut, the realtor's testimony that he informed
     appellant on the morning of February 3, 1995, that the 1.1
     acres of land was not included in the offer and acceptance was
     substantiated by appellant's fiancé, and the purchaser of the
     timber revealed that he had received a phone call the night of
     February 3, 1995, regarding the purchase of timber and that
     appellant back-dated their agreement to reflect a date of
     January 20, 1995, a date prior to his knowledge of the status
     of the 1.1 acre tract, the evidence, when viewed in the light
     most favorable to the State, led the court to conclude that
     there was substantial evidence that appellant was not
     operating in good faith and knew he did not own the 1.1 acres
     prior to his selling the timber; this being the case, the
     court would not consider the doctrine of equitable conversion
     with respect to this tract.

3.   Conversion -- equitable conversion -- doctrine has no
     application in criminal context. -- Equitable conversion is a
     civil property law doctrine often invoked to ascertain the
     rights and duties of contracting parties and those claiming
     under them in relation to real estate as the result of a
     specifically enforceable contract between them; this doctrine
     has no application in a criminal context.

4.   Motions -- directed verdict denied -- no error found. -- The
     trial court did not err in denying the motion for directed
     verdict where the verdict was supported by substantial
     evidence.

5.   Sentencing -- jury fixes punishment -- assessment of probation
     lies with discretion of trial court. -- Under our bifurcated
     trial procedure, the jury fixes punishment following the
     penalty phase of the trial and may recommend an alternative
     sentence such as suspension or probation; the actual
     assessment of probation, however, is a matter that lies within
     the discretion of the trial court. 

6.   Sentencing -- sentence and fine as originally imposed by jury
     not legal -- trial court did not err in sending jury back to
     reconsider. -- An imprisonment of zero years does not fall
     within the statutory range of from five to twenty years; a
     fine of zero dollars is not the same as a fine not exceeding
     $15,000; where the jury could have given a term of
     imprisonment or a fine or both, but instead, it seized none of
     these options, the sentence was clearly improper, and the
     trial court did not err in sending the jury back to reconsider
     the matter; there was no error committed by the trial court
     with respect to sentencing.

7.   Appeal & error -- errors may not be considered for first time
     on appeal -- four exceptions. -- There are only four
     exceptions to the court's rule that errors may not be
     considered for the first time on appeal: (1) when an error is
     made by the trial court without knowledge of the defense
     counsel and without opportunity to object; (2) when a trial
     court should intervene on its own motion to correct a serious
     error by admonition or mistrial; (3) when evidentiary errors
     affect a defendant's substantial rights although they were not
     brought to the court's attention; and (4) when prejudice is
     conclusively shown by the record in death penalty cases and
     would unquestionably require relief under Ark. R. Crim. P. 37.
     

8.   Appeal & error -- appellant charged with knowledge of when
     final order was entered -- final order commences time for
     appeal. -- Appellant and his counsel were charged with
     knowledge of when the final order was entered in this case,
     because that commenced the time for appeal; it necessarily
     followed that they were likewise charged with knowledge of
     what was in that final order.

9.   Appeal & error -- matters pertaining to final order should be
     raised at trial -- issue will not be considered for first time
     on appeal. -- A matter pertaining to a final order should be
     raised to the trial court, the same rationale applies to a
     condition of probation; where no motion challenging the urine
     testing as a condition of probation was filed, the supreme
     court would not consider the issue for the first time on
     appeal.


     Appeal from Jefferson Circuit Court; H. A. Taylor, Judge;
affirmed.
     John Wesley Hall, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     The appellant, Kacy L. Higgins, was convicted of the crime of
theft of property, a Class B felony, in that he exercised
unauthorized control over timber owned by other persons and valued
in excess of $2,500.  The charge arose after Higgins, pursuant to
a contract with Calvin Sprinkle, accepted $8,750 from Sprinkle for
the removal of timber located on and adjacent to property known as
"5803 West Barraque Street" in Pine Bluff.  Higgins's defense was
that he was entitled to sell the timber because he and his fiancé,
Barbara Shepherd, had entered into a contract to purchase the house
and land located at that address, and that he was the equitable
owner of the property.  Higgins ultimately received a sentence of
five years' probation and a $3,000 suspended fine contingent upon
his compliance with the conditions of probation.  We affirm the
judgment.
     On November 12, 1994, Higgins and Shepherd entered into an
offer and acceptance for the purchase of land located at 5803 West
Barraque Street in Pine Bluff, with Rick Pierce and Betty Schrantz
signing as the designated sellers.  The agreement called for a
purchase price of $22,000 and was contingent upon three
occurrences: (1) the buyers' obtaining suitable financing; (2) the
land having an appraised value equal to or greater than $22,000;
and (3) a survey reflecting that the land was three acres or more
in size.  The offer and acceptance called for possession to be
transferred upon closing but allowed the buyers access to the
property to make repairs to the house in advance of closing to
facilitate financing.  The house was in a state of disrepair and
had been unoccupied for a period of time.
     It developed at trial that the property located at 5803 West
Barraque Street contained a parcel of land with 2.76 acres. 
Immediately adjacent to and west of that property was a strip of
land containing 1.1 acres held in the name of a partnership known
as "SS&P Partnership."  Rick Pierce testified that the partnership
was composed of himself, his wife, and her two brothers.  A central
issue at trial was whether the 1.1 acres of land was included
within the agreement to purchase and convey 5803 West Barraque
Street.  The information charging Higgins with theft stated only
that Higgins exercised unauthorized control over timber owned by
Rick Pierce.  It did not differentiate between timber located on
the 2.76 acre tract and timber located on the 1.1 acre tract.
     Carroll Austin, the real estate agent who negotiated the sale,
testified that he knew the offer and acceptance was based on 3
acres and later assumed that the 1.1 acre tract was included in the
sale of the Barraque Street property.  But he added that Rick
Pierce never represented to him that this was the case.  He
testified that he told Higgins in person on the morning of February
3, 1995, that the 1.1 acre tract was not part of the 5803 West
Barraque Street land sale.  Calvin Sprinkle also testified for the
prosecution.  He explained that he was in the timber business and
that he was contacted by Higgins on the night of February 3, 1995,
about purchasing some timber.  He struck an agreement with Higgins
and testified that he cut approximately one acre of timber located
on and around Higgins's yard on February 6, 1995.  He further
related to the jury that on the written contract, Higgins marked
out the February 6, 1995 date and back-dated the contract to
January 20, 1995.  He stated that he could not remember Higgins's
explanation for doing this.  Sprinkle testified that later that
day, Higgins requested immediate payment because he needed to have
an operation on his head.  Higgins was paid $8,750 for the timber
by Sprinkle's company.
     Rick Pierce testified that timber had been taken from both the
2.76 acre tract and the 1.1 acre tract.  He added that he gave no
one the authority to cut the timber.  He also testified as to the
amount of acreage involved in the sale of 5803 West Barraque
Street.  He explained that his instructions to Carroll Austin were
to sell the house and the land associated with it.  He stated that
he never intended to sell the 1.1 acre tract, and he confirmed that
the two tracts, in fact, had separate owners.
     Barbara Shepherd testified for the defense.  She stated that
when she and Higgins entered into the contract to purchase 5803
West Barraque Street, they were not told that the 1.1 acre tract
was excluded.  She testified at length as to the expenditures of
time and money made by herself and Higgins in renovating the
dilapidated property on the 2.76 acre parcel.  She also testified
about the events leading up to the removal of timber.  She stated
that on February 3, 1995, Higgins called her at work to tell her
that he had learned that the 1.1 acre tract was not included within
the sale of the property.  She testified that as of that date, a
survey had recently been done, reflecting the land to be 3.86 acres
in size, thus including both tracts.  She stated that it was her
belief that a second survey, reflecting only the 2.76 acre tract,
was performed after the timber was cut.
     Higgins testified in his own defense that he had a contract to
purchase both tracts of land.  He relied in part on the survey done
for 3.86 acres of land and a newspaper advertisement that reflected
the 5803 West Barraque Street property was "over 3 acres," to reach
this conclusion.  He further related to the jury a conversation he
had with Carroll Austin on February 3, 1995, which differed
dramatically from Austin's rendition of the same event.  He stated
that Austin came out to the property and was "crying and pacing the
floor" and told him he had made a mistake.  But according to
Higgins, Austin never told him that the 1.1 acre tract was
excluded.
     As to back-dating the contract between Sprinkle and himself,
Higgins explained that he did so because a number of people had
come by the property asking to purchase the timber and that he
back-dated the contract in order to avoid a conflict and to make it
look as though the agreement had been previously negotiated.  His
reasons for cutting the timber, he said, were for security
purposes.  He explained that because the property was close to a
prison, he feared that escaped inmates would hide in the woods by
the home.  He explained that he wanted immediate payment from
Sprinkle because he needed the money for surgery on his eye and for
the removal of air pockets from his mouth.

                     I. Equitable Conversion
     Higgins first challenges his conviction under the doctrine of
equitable conversion.  At the close of the State's case, Higgins
moved for a directed verdict on grounds that he was the equitable
owner of the property and that, as a matter of law, there was no
showing of the requisite intent to commit the crime because of his
good faith belief in his ownership of the timber in question.  The
motion, which was written and submitted to the court, was denied. 
Higgins's abstract reflects that he renewed the motion at the close
of all the evidence.  The State argues that Higgins never obtained
a timely ruling from the trial court on his renewal motion, but the
State is wrong in this respect.  The abstract reflects a ruling,
and the record evidences the fact that the trial court denied the
renewed motion in chambers at the beginning of the conference on
instructions.
     The law with respect to the denial of a directed-verdict
motion was restated recently in Peeler v. State, 326 Ark. 423, 427,
___ S.W.2d ___, ___ (October 28, 1996):
          A motion for directed verdict is a challenge to the
     sufficiency of the evidence.  Stewart v. State, 320 Ark.
     75, 894 S.W.2d 930 (1995); Evans v. State, 317 Ark. 449,
     878 S.W.2d 409 (1994).  The test is whether the verdict
     is supported by substantial evidence, direct or
     circumstantial.  Evans v. State, supra; Thomas v. State,
     312 Ark. 158, 847 S.W.2d 695 (1993).  Substantial
     evidence is evidence of sufficient certainty and
     precision to compel a conclusion one way or another. 
     Evans v. State, supra; Coleman v. State, 314 Ark. 143,
     860 S.W.2d 747[] (1993).  We review the evidence in the
     light most favorable to the appellee.  Id.
A person commits theft of property if he "[k]nowingly takes or
exercises unauthorized control over, or makes an unauthorized
transfer of an interest in, the property of another person, with
the purpose of depriving the owner thereof."  Ark. Code Ann.  5-
36-103(a)(1) (Supp. 1995).  "Property of another person," as
defined by the Arkansas Code, does not include "property in the
possession of the actor in which another has only a security
interest, even though legal title is in the secured party pursuant
to a conditional sales contract or other security agreement."  Ark.
Code Ann.  5-36-101(7) (Repl. 1993).  Higgins urged at trial, as
he does now on appeal, that the State failed to prove that the
timber was the "property of another person" because of the doctrine
of equitable conversion.
     Higgins's argument is not persuasive.  The offer and
acceptance for the sale of the Barraque Street property is unclear
on precisely what acreage was included.  Both the State and Higgins
presented proof on this point.  The evidence by the State was that
Higgins knew he had no ownership interest in the 1.1 acre tract
where much, if not most, of the timber was cut.  Carroll Austin
testified that he informed Higgins on the morning of February 3,
1995, that the 1.1 acres of land was not included in the offer and
acceptance.  This testimony was also substantiated by Barbara
Shepherd, who testified that Higgins called her at work that day to
tell her that he had been told the 1.1 acres was not included. 
Calvin Sprinkle then revealed that he received a phone call the
night of February 3, 1995, regarding the purchase of timber.  He
also testified that Higgins back-dated their agreement to reflect
a date of January 20, 1995, a date prior to his knowledge of the
status of the 1.1 acre tract.  Viewing this evidence in the light
most favorable to the State, as we must, we conclude that there was
substantial evidence that Higgins was not operating in good faith
and knew he did not own the 1.1 acres prior to his selling the
timber.  This being the case, we will not consider the doctrine of
equitable conversion with respect to this tract.
     As already stated, the record is not clear about where the
timber was cut.  Because ownership of the 1.1 acres was a paramount
issue at trial, it is logical to assume most of the timber was cut
from that acreage.  Indeed, Higgins's counsel admitted as much at
oral argument.  The purchase price for the timber was $8,750. 
Thus, it is reasonable to conclude that theft of property in excess
of $2,500 would have occurred in connection with timber taken from
the 1.1 acre tract.
     But even assuming that the theft occurred solely on the 2.76
acre tract, the doctrine of equitable conversion has no application
in the criminal context.  We agree with the conclusion reached by
the Supreme Court of Colorado, when the doctrine was raised as a
criminal defense:
     Equitable conversion, however, is a civil property law
     doctrine often invoked to ascertain the rights and duties
     of contracting parties and those claiming under them in
     relation to real estate as the result of a specifically
     enforceable contract between them.  (Citing authority.) 
     We know of no justification to extend the doctrine to
     this case, which involves a criminal charge of
     fraudulently selling land to a third party . . . .
People v. Alexander, 663 P.2d 1024, 1030-31 (Colo. 1983).  The
trial court did not err in denying the motion for directed verdict.

                         II. Sentencing
     When the jury first returned from its sentencing-phase
deliberations, it fixed a sentence of zero imprisonment and a zero
fine.  One year of probation was suggested.  Because the range of
sentencing for theft of property over $2,500 is a fine not
exceeding $15,000 or imprisonment from five to twenty years [Ark.
Code Ann.  5-4-201(a)(1) and 5-4-401(a)(3) (Repl. 1993)], or
both, the trial court concluded that this was not a legal sentence
and sent the jury back to deliberate once more.  See AMCI 2d 9103. 
The jury returned with a sentence of a $3,000 fine and no
imprisonment, with a suggestion of five years' probation.  The
trial court's order of probation provided for the fine and
probationary sentence and that the fine would be suspended
conditioned on satisfactory completion of probation.
     Higgins's sole contention under this point is that the trial
court should have allowed the first sentence to stand.  However,
Higgins has made it clear that he does not want the matter remanded
for resentencing.  Under our bifurcated trial procedure, the jury
fixes punishment following the penalty phase of the trial.  Ark.
Code Ann.  5-4-103 (Repl. 1993).  It is further clear that the
jury may recommend an alternative sentence such as suspension or
probation.   Ark. Code Ann.  16-97-101(4) (Supp. 1995).  See Hill
v. State, 318 Ark. 408, 887 S.W.2d 275 (1994); AMCI 2d 9111.  The
actual assessment of probation, however, is a matter that lies
within the discretion of the trial court.  Ark. Code Ann.  5-4-301
(Repl. 1993); Hill v. State, supra.
     The first question before us is whether an imprisonment of
zero years falls within the statutory range of from five to twenty
years.  Ark. Code Ann.  5-4-401(a)(3) (Repl. 1993).  The answer is
that it does not, as zero imprisonment is no imprisonment at all. 
The next question is whether a fine of zero dollars is a fine not
exceeding $15,000.  Ark. Code Ann.  5-4-201(a)(1) (Repl. 1993). 
Common sense tells us that something with no quantity or magnitude
is, in fact, nothing.  There was no fine in this case.  The jury
could have given a term of imprisonment or a fine or both, but
instead, it seized none of these options.  The sentence was clearly
improper, and the trial court did not err in sending the jury back
to reconsider the matter.
     The cases cited by Higgins for the proposition that it is
error to require imprisonment actually stand for the principle that
it would be error to require both a term of imprisonment and a
fine.  See Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978);
Brown v. State, 261 Ark. 683, 250 S.W.2d 776 (1977).  Those cases
are simply not relevant to the facts of this case.
     Again, there was no error committed by the trial court with
respect to sentencing.

                       III. Urine Testing
     The order of probation was entered nine days after trial and
included as one condition of probation: "Defendant shall not abuse
alcohol nor use illegal drugs while on probation and shall submit
to periodic drug screen testing as directed by probation officer." 
As noted by Higgins, this was the first mention of drug-screen
testing in the matter.  He now argues that the urine testing was
imposed on him without justification and is violative of the Fourth
Amendment, though this argument was not made to the trial court.
     There are only four exceptions to this court's rule that
errors may not be considered for the first time on appeal: 1) when
an error is made by the trial court without knowledge of the
defense counsel and without opportunity to object; 2) when a trial
court should intervene on its own motion to correct a serious error
by admonition or mistrial; 3) when evidentiary errors affect a
defendant's substantial rights although they were not brought to
the court's attention; and 4) when prejudice is conclusively shown
by the record in death penalty cases and would unquestionably
require relief under Ark. R. Crim. P. 37.  Marshall v. State, 316
Ark. 753, 875 S.W.2d 814 (1994); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).  Higgins contends that he falls within the first
exception because he had no notice of this condition and, thus, no
opportunity to object to the urine testing in the probation order.
     The final order in this case, which was the order of probation
and which included the urine testing, was entered on September 28,
1995.  The order shows a copy going to "Attorney for Defendant." 
Higgins apparently met with the Adult Probation Office on September
20, 1995, which was the day after his sentencing.  Notice of appeal
was filed by Higgins on October 17, 1995.  We find it to be
somewhat incredible that Higgins did not know about a condition of
his probation prior to his appeal.  Moreover, Higgins and his
counsel are charged with knowledge of when the final order was
entered in this case, because that commences the time for appeal. 
See, e.g., Nance v. State, 318 Ark. 758, 891 S.W.2d 26 (1994). 
Indeed, Higgins appealed from that order of probation 19 days after
the order was entered.  It necessarily follows that they are
likewise charged with knowledge of what is in that final order.
     Under our criminal rules, Higgins had 30 days from the date of
that order to file some motion for relief with the trial court. 
Ark. R. Crim. P. 33.3, formerly Ark. R. Crim. P. 36.22; Ark. R.
App. P. 2(a)(1).  We have held in other contexts that a matter
pertaining to a final order should be raised to the trial court. 
See Williams v. State, 320 Ark. 498, 898 S.W.2d 38 (1995)
(appellant voiced no objection to 75-year sentence at trial);
Oglesby v. Baptist Medical System, 319 Ark. 280, 891 S.W.2d 48
(1995) (appellant did not raise issue of whether battery claim was
included in dismissal order to trial court and, thus, waived it). 
The same rationale should certainly apply to a condition of
probation.  No motion challenging the urine testing as a condition
of probation was filed.  Hence, we will not consider the issue for
the first time on appeal.
     Affirmed.

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