Brett Blackstone v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION I

BRETT BLACKSTONE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-483

NOVEMBER 15, 2000

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT, SIXTH DIVISION, [NO. CR99-1753]

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

AFFIRMED

Appellant Brett Blackstone was convicted in a bench trial of Class C felony theft of property. He was subsequently ordered to serve four months in a regional detention facility, to be followed by a period of probation and electronic monitoring.1 In addition, Mr. Blackstone was ordered to pay $1000.00 restitution. Mr. Blackstone now appeals, raising five arguments for reversal.2

Mr. Blackstone's first two arguments are that the trial court erred in allowing State's evidence that had not been provided to him before trial, and that the trial court erred in failing to inquire into the prejudicial effect of the evidence. Third, he contends that the trial court erred in finding him guilty based solely on his confession. Next, Mr. Blackstone argues that the trial court erred in not allowing him to impeach a witness for the State. Finally, he asserts that the trial court erred in convicting him based on uncorroborated statements from two accomplices.

This court reviews the sufficiency of corroborating evidence by the test of whether the verdict is supported by substantial evidence, which means whether the factfinder could have reached the verdict without resorting to speculation or conjecture. See Roe v. State, 7 Ark. App. 263, 647 S.W.2d 483 (1983). 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 trial errors. Bradford v. State, 325 Ark. 278, 927 S.W.2d 329 (1996).

At the trial, Steve Clements testified for the State. Mr. Clements stated that he is the store manager of an Abercrombie and Fitch clothing store in Park Plaza Mall in Little Rock, where Mr. Blackstone was an employee. On the evening of February 25, 1999, Mr. Clements received a telephone call informing him that someone suspected that Mr. Blackstone had been stealing from the store. As a result, Mr. Clements was very alert in the store on that evening.

Mr. Clements observed two men in the store that night who were walking around looking at merchandise for a long period of time. Then the men took several items ofclothing to the cash register where Mr. Blackstone allegedly electronically removed some anti-theft deterrents from the items and placed them into bags, without charging for the items. The two men wandered around the store for about fifteen more minutes, and when they attempted to leave they were stopped by a store manager who asked for receipts, which they could not produce. Mr. Clements stated that the aggregate value of the clothes recovered from the men was approximately $900.00.

After this incident, a security guard, John Carraro, interviewed Mr. Blackstone. At first, Mr. Blackstone denied taking part in any theft, but later admitted that he knew the two men and had removed sensors so that they could take the clothing from the store. Mr. Blackstone then gave a handwritten statement, in which he admitted that he had been helping friends steal from the store by doing such things as removing sensors from items and leaving them in the dressing room, and by allowing his friends to leave the store with items that they had not paid for. Mr. Blackstone estimated that he, himself, possessed about $1000.00 worth of stolen merchandise at his home.

Derrick Chism gave testimony about his involvement in the thefts. He was cooperative with the police and admitted that he was one of the men caught stealing clothes on February 25, 1999. On that night, he and Jason Conley went to the store because Mr. Blackstone told them that he was working and they could come get some clothes. Mr. Chism stated:

Whenever we went in there he would have everything bagged up and he would usually tell us the time to be there, whenever the managers were on lunch break or something, where it would be easy just to grab the bags andleave. We never purchased these clothes.... I know none of the clothes that we took out of the store or tried to take out of the store had sensors on them because no alarm went off. I have done this before, probably about four times.

Jason Conley also admitted that he was involved in the thefts on the evening at issue. He corroborated the account given by Mr. Chism, stating that Mr. Blackstone would assist them and that they had done this on about four previous occasions.

Detective Sue Johnston of the Little Rock Police Department investigated the case, and during her interview with Mr. Blackstone he admitted that he and the other men had taken clothes from the store on six or seven occasions. Detective Johnston took photographs of the clothing that was allegedly stolen on the night at issue, and these photographs were admitted over Mr. Blackstone's objection that they had not been provided by the State during discovery.

Mr. Blackstone testified on his own behalf, and he denied removing any sensors from the items. He admitted to assisting one of the men in stealing three items that were not equipped with anti-theft devices. However, he denied any involvement in the other thefts. Mr. Blackstone explained that he gave a false statement that he possessed $1000.00 worth of stolen merchandise only because the security guard told him what to write and because he was told he would not be arrested if he admitted guilt.

We first address Mr. Blackstone's argument that there was insufficient corroboration of his accomplices' testimony to support the verdict. Arkansas Code Annotated section 16-89-111(e)(1) (1987) provides that "[a] conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect thedefendant with the commission of the offense." The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. McGehee v. State, 338 Ark. 152, 992 S.W.2d 10 (1999). In the instant case, Mr. Blackstone contends that there was no corroborating evidence to suggest that he stole anything other than the three items he admitted to stealing, which were valued at less than $500.00 and thus could not be the basis for a felony conviction.3

Mr. Blackstone's sufficiency argument is unavailing, because there was ample corroboration, consisting of 1) Mr. Blackstone's written statement in which he admitted to helping friends steal from the store and having $1000.00 worth of stolen merchandise in his possession; 2) his subsequent admission during a police interview that he had earlier assisted in thefts on six or seven occasions; and 3) the eye-witness testimony of Mr. Clements who observed Mr. Blackstone placing approximately $900.00 of clothing into bags and handing them to the accomplices without receiving payment. This evidence sufficiently corroborated the testimony of his accomplices, and substantial evidence supports his conviction.

We next turn to Mr. Blackstone's argument that the State violated its discovery obligations, and that the trial court erred in admitting the allegedly stolen items andphotographs of the items, and further erred in refusing to inquire into the prejudicial effect of their admission. At a pretrial hearing, Mr. Blackstone's counsel stated that he had been advised that some of the allegedly stolen clothing was located at the victim's store, and he stated that he wanted to view it. The trial court stated that Mr. Blackstone was entitled to see the items, and the prosecutor advised that she would assist. The trial was scheduled for a Monday, and according to appellant's counsel he advised the prosecutor that he would need to see the items on the previous Wednesday because he would not be available Thursday or Friday, and an appointment was set. However, when appellant's counsel arrived on Wednesday, the clothes were missing. He was notified Friday morning that the clothes had been found, but stated he could not view them then because of a schedule conflict. The first time Mr. Blackstone viewed the clothes, or photographs of the clothes, was at trial.

Rule 17.1(v) of the Arkansas Rules of Criminal Procedure provides that, on timely request, the prosecutor shall provide photographs or tangible objects that the prosecution intends to introduce at trial. Mr. Blackstone submits that this rule was violated and that, as such, the trial court should have granted relief pursuant to Ark. R. Crim. Pro. 19.7(a), which provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order issued pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

Mr. Blackstone further argues that the trial court erred in failing to ascertain whether the failure to comply with Rule 17.1 had a prejudicial effect.

We hold that the State committed no discovery violation. The abstract does not indicate that the actual clothes at issue were admitted into evidence; rather, photographs of the clothes were admitted. The prosecutor informed the trial court that the photographs were available at the police station, but Mr. Blackstone's counsel did not attempt to inspect them. Our supreme court has held that an "open-file" policy complies with discovery requirements. See Halfacre v. State, 277 Ark. 168, 639 Ark. 734 (1982). Since no discovery violation occurred, it was unnecessary for the trial court to determine whether admission of the photographs was prejudicial to Mr. Blackstone. Nevertheless, the trial court did indicate that introduction of either the photographs or the clothes themselves would not have prejudiced Mr. Blackstone, and we agree.

Mr. Blackstone's next argument is that the trial court erred in finding him guilty based on his confession alone. Arkansas Code Annotated section 16-89-111(d) (1987) provides that, "A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed."

Mr. Blackstone's argument is misplaced. As the State points out, it was not raised below and thus is not preserved for review. See McGhee v. State, 330 Ark. 38, 954 S.W.2d 206 (1997). However, even had it been preserved it would be of no avail. Mr. Blackstone's conviction was not based solely on his out-of-court confessions. The testimony ofMr. Clements and Mr. Blackstone's two accomplices clearly established that the crime had been committed.

Mr. Blackstone's remaining argument is that the trial court erred in refusing to allow him to impeach Mr. Clements, citing Ark. R. Evid. 607, which provides, "The credibility of a witness may be attacked by any party, including the party calling him." On cross-examination, defense counsel asked Mr. Clements if he had made a purchase at the store for Mr. Blackstone on a credit card. The State made a relevancy objection, which was sustained. Mr. Blackstone now asserts that this was error because Mr. Clements had earlier testified that he had never sold anything to Mr. Blackstone.

We will not reverse a ruling on relevancy unless we find an abuse of the trial court's discretion. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). In the instant case we find no abuse in the trial court's refusal to allow Mr. Blackstone to ask the question at issue. Contrary to appellant's assertion, the abstract does not reflect that Mr. Clements testified that he had never sold anything to appellant. Based on our review of the record, we find no probative value as to whether or not Mr. Clements ever purchased anything for Mr. Blackstone, and hold that the trial court's decision in this regard did not infringe upon Mr. Blackstone's right to impeach the adverse witness.

Affirmed.

Hart and Neal, JJ., agree.

1 Although the judgment and commitment order entered by the trial court provides for forty-eight months of electronic monitoring, the trial court stated that it would be twenty-four months when announcing its ruling from the bench.

2 The State argues that appellant's abstract violates Ark. Sup. Ct. R. 4-2 because he failed to abstract the felony information filed against him. However, we reach the merits of his appeal because omission of the information did not render the abstract flagrantly deficient. See generally Johnson v. State, __ Ark. __, __ S.W.3d __ (opinion delivered October 12, 2000).

3 Arkansas Code Annotated section 5-36-103 (Repl. 1997) provides that theft of property is a Class A misdemeanor if the value of the property is $500.00 or less, but is a Class C felony if valued at less than $2500.00 but more than $500.00.