David Earl Jones v. State of Arkansas

ar00-397

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION IV

DAVID EARL JONES,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-397

OCTOBER 25, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR99-1992,

HON. JOHN BERTRAN PLEGGE,

JUDGE

AFFIRMED

David Earl Jones was found guilty by a circuit judge, serving as trier of fact, of being a felon in possession of a firearm. For reversal he argues that the conviction was not based on substantial evidence and that the judge erred in admitting hearsay evidence. Finding no error, we affirm.

Kelly Kent Justice, manager of Money Tree Loans, testified at Jones's trial that on February 16, 1999, a man pawned a Model 686 Smith & Wesson pistol to the business. Justice said that the law requires the pawn shop to obtain certain information, including the name, address, driver's license, age, date of birth, a picture, and the signature of the person pawning the firearm. When Jones's identification was checked, the driver's license picture matched, he signed a ticket verifying that the pistol was his, and he was given some money. Justice identified Jones as that man. Justice said he informed Jones that he would have to

undergo a background check when he picked up the gun.

When Jones returned to retrieve the gun, he filled out ATF Form 4473 for the background check. However, when Justice called ATF with the information on March 15, 1999, he was informed, without explanation, that he could not release the gun. Justice told Jones there would be a delay and to check back with him. Later the same day, Justice received notice that Jones was not to be allowed to retrieve the gun. Justice said he informed Jones of the procedure by which he could attempt to get the gun returned, and he notified the police of the ATF denial. Subsequently, Jones returned to the pawn shop saying that he was having trouble getting in contact with the ATF, and later a man identifying himself as Jones's father attempted to recover the gun. However, the ATF informed Justice that he was not to release the gun unless he was "one hundred percent certain" that it would not be returned to the person denied possession of it. Justice did not release the gun.

After this testimony, the prosecutor sought to introduce into evidence certified documents relating to a 1984 case from the Circuit Court of Prairie County, involving Jones as a defendant and indicating that Jones had pled guilty to a Class C felony. Three documents, entitled "Information," "Conditions of Suspension or Probation," and "Guilty Plea Statement," were offered by the State as proof that Jones had a prior felony conviction. Jones objected to the introduction of these documents on the basis that none of them showed that he had actually been convicted. He argued that since the document entitled "Conditions of Suspension or Probation" provided that a judgment of conviction would be entered if his suspension or probation was revoked, the documents did not demonstrate that he had beenconvicted. He contended that he had pled guilty under the First Offenders Act and, therefore, it was not considered a conviction. The objection was overruled, the documents were admitted, and the State rested.

Jones then moved for a directed verdict, arguing that the evidence was not sufficient to convict him because of the State's failure to prove that he was a convicted felon. The motion was denied.

Defense counsel then sought to introduce a certificate bearing the same style and case number of the documents that had been introduced by the State. This document, which was certified, stated:

I, Alta Oliver, Deputy Clerk of the Circuit Court of Prairie County, Arkansas, Southern District, do hereby attest that I have conducted a diligent search of the records in State of Arkansas v. David Earl Jones, Case No. CR-84-6, for a judgment, and that diligent search failed to disclose such judgment in Case No. CR-84-6.

THIS CERTIFICATE EXECUTED on this 15th day of October, 1999.

KARAN TATE, CIRCUIT CLERK

BY: /s/ Alta Oliver

ALTA OLIVER,

DEPUTY CIRCUIT CLERK

Prairie County, Southern District

P.O. Box 283

DeValls Bluff, AR 72041

12-31-2000

SEAL

The prosecution objected to the admission of this document because the certificate does not state that Jones had not been convicted of the charge; only that they could not find ajudgment of conviction on Jones. The trial court admitted both the State's documents and Jones's document. The defense rested and again moved for a directed verdict.

The judge took the case under advisement and directed the prosecutor to write to Oliver, send her a copy of the certified documents that the State had introduced, and inform Oliver that the documents appeared to be recorded in the Prairie County criminal court records. The judge instructed the prosecutor to report her findings to him.

On December 6, 1999, a hearing was conducted for the purpose of considering additional information received from the Prairie County Circuit Clerk in response to the State's inquiry that the court had directed. At that hearing, the State offered a letter dated November 4, 1999, that the prosecuting attorney had received from Oliver. The letter recounted the circumstances under which Oliver had provided her earlier letter to Jones's attorney (in which she had stated that a diligent search had failed to disclose a judgment in Jones's 1984 Prairie County Circuit case); it stated that the 1984 case had not been expunged; and it stated that Oliver was sending a copy of the docket sheet. Attached to the letter was what purports to be the "Criminal Docket" sheet containing hand written entries pertinent to Jones's 1984 case. Among the entries is the following:

8/20/84 Plea Agreement; guilty plea; on State's recommendation, court suspends imposition of sentence for three (3) years subject to Conditions Statement including $500 fine, $80.75 court costs.

Jones objected to the introduction of the letter and its attachments on grounds that they were hearsay. The court overruled the objection and allowed the introduction of theletter and attachments as "business or official records." The court then found Jones guilty of being a felon in possession of a firearm, placed him on twenty-four months probation, and assessed a fine of $150, plus court costs.

On appeal, Jones first challenges the sufficiency of the evidence to support the conviction. Preservation of an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Kinney v. State, 315 Ark. 481, 868 S.W.2d 463 (1994); Smith v. State, 310 Ark. 247, 250, 837 S.W.2d 279, 281 (1992); Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). In resolving the question of the sufficiency of the evidence in a criminal case, we view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the decision of the trier of fact. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992); Ryan v. State, 30 Ark. App. 196, 786 S.W.2d 835 (1990). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty and precision, compel a conclusion one way or the other, without resorting to speculation or conjecture. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992); Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989).

Jones was found guilty of violating Ark. Code Ann. § 5-73-103 (Repl. 1997), which provides, in pertinent part:

(a) ... [N]o person shall possess or own any firearm who has been:

(1) Convicted of a felony[.]

. . .

(b) A determination by a jury or a court that a person committed a felony:

(1) Shall constitute a conviction for purposes of subsection (a) of this section even though the court suspended imposition of sentence or placed the defendant on probation[.]

Proving that the defendant has previously been convicted of a felony is an essential element of this crime, and the State must prove it beyond a reasonable doubt. Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (1990). Jones contends that none of the certified documents introduced into evidence by the State contain language proving that he had been convicted of a felony. In fact, he argues, the document entitled "Conditions of Suspension or Probation" specifically states, "If the Court revoked your suspension and/or probation, a judgment of conviction shall be entered against you in this case...." Jones contends this statement means that, until he fails to comply with one of the conditions of his probation, he has not been convicted of a felony. Relying on Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983), Jones points out that under Ark. Code Ann. § 16-90-105 (1987), a judgment of conviction and sentence are required to be entered in each case. He argues that the only way a defendant may enter a guilty plea to a felony, be required to pay a fine, and the court not enter a judgment of conviction is if the defendant enters his plea pursuant to Act 346 of 1975. Ark. Code Ann. § 16-93-303(a)(1) (1987). Jones argues that because the State failed to introduce a written judgment of conviction showing that the Circuit Court of Prairie County revoked his suspension or probation, it failed to meet its burden of proof on the element of a prior conviction; therefore, there was insufficient evidence to support theverdict.

However, Jones's argument ignores Ark. Code Ann. § 5-73-103(b)(1) (Repl. 1997), which provides that a defendant is a felon for purposes of that statute even though the court suspended imposition of sentence or placed the defendant on probation. Although we cannot determine from the court's docket entry of August 20, 1984, whether the court accepted Jones's plea on the Class C theft-of-property charge, it is irrelevant. What can be determined from the records of the 1984 charges against Jones in Prairie County is that on August 20, 1984, Jones pled guilty to a felony charge of theft of property, and the court imposed a fine and placed him on probation. This evidence, coupled with the evidence of his possession of a firearm, is sufficient to establish Jones's guilt under Ark. Code Ann. § 5-73-103(b)(1).

Jones also argues that the trial court erred in admitting hearsay into evidence. He refers specifically to the letter dated November 4, 1999, from Oliver, addressed to Elizabeth Thomas, the prosecutor, and the attachments to it. The trial judge admitted the letter and attached documents into evidence under an exception to the hearsay rule contained in Ark. R. Evid. 803(6)(Records of Regularly Conducted Business Activity) or 803(8) (Public Records and Reports). Jones asserts that the letter and its attachments were not records kept in the course of a regularly conducted business, or public records or reports. While we agree with Jones that the letter does not conform to the requirements of either of these exceptions, and that it should not have been admitted, we hold that its introduction was harmless error. The only information contained in the letter that was not apparent from the other documents that had already been properly introduced in the case was the statement thatJones's Prairie County case had not been expunged. Jones did not contend that the records of the 1984 Prairie County proceedings had been or should have been expunged.

We do not agree with Jones's argument that the "Criminal Docket," containing the handwritten notes of the proceedings in Jones's Prairie County case, is not included within the definition of public records as defined in Ark. R. Evid 803(8). In Price v. State, 48 Ark. App. 37, 889 S.W.2d 40 (1994), we held that a docket entry from a municipal court, when certified, was admissible as a self-authenticated public record under Ark. R. Evid. 902(4). Although the Prairie County docket sheet involved here was not certified, Jones did not question the docket sheet's authenticity; he objected only that the letter and its attachments are hearsay. Because the Prairie County "Criminal Docket" sheet was a public record, it was admissible under Ark. R. Evid. 803(8), and we find no merit to Jones's argument that it was hearsay.

Affirmed.

Robbins, C.J., and Neal, J., agree.