William Allen Donner v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

WILLIAM ALLEN DONNER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-545

NOVEMBER 15, 2000

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR99-2223,

HON. DAVID BOGARD,

JUDGE

AFFIRMED

William Allen Donner brings this appeal contending that the trial court erred by allowing into evidence an inadmissible hearsay statement that connected him to stolen jewelry. The State charged appellant with theft by receiving and alleged that on December 8, 1997, appellant was in possession of property, which was valued in excess of $2,500 and which belonged to Rachael Robinson, knowing or having good reason to believe that the property was stolen.

At the bench trial, Robinson testified that in December 1997, she had jewelry stolen from her home. She stated that she had taken off some of her jewelry on a Sunday night and that on the next Saturday, approximately, December 15, 1997, when she intended to wear the jewelry again, she discovered a lot of it was missing, including a pair of diamondearrings. She described the earrings as having "round solid diamond jackets that went around them."

She said that because the earrings were far too large for the jackets, she had taken them to a jeweler and had "screw-on backs" put on them. She also stated that one of the backs of the earrings was missing.

She reported the theft to the police. She testified, "I started checking pawnshops, and I went in and described the earrings, and I even told about the little missing thing that goes on the back. The pawnshop broker said, `I have those earrings.'" Appellant objected to this testimony as hearsay, but the court overruled the objection.

Robinson then testified that the pawnshop broker stated that she could not see the earrings, but that they would be on police hold. Robinson also testified that appellant is her ex-husband's nephew and that appellant stayed at her house in November 1997. She also said that she knew appellant's brother, Vincent Todd Donner, and that he had stayed at her home also.

William Robinson, Rachael Robinson's ex-husband, testified that he had purchased the earrings described by Robinson for her five or six years ago, that he had them appraised through an insurance company, and that they were worth $5,000. Robinson also stated that Vincent Todd Donner had told him that appellant had stolen the jewelry.

Bill Pearson, manager of Easy Cash Pawn, testified that he has a record of a transaction involving appellant. He testified that the transaction, number 91339, occurred on December 8, 1997, at 11:35 a.m. when appellant brought in a pair of diamond earrings,approximately ½ carat each. Appellant presented a Missouri driver's license at the time of the transaction that contained his name, date of birth, height, weight, hair, and eye color. Pearson then identified appellant as the person who sold the earrings at the pawnshop.

Pearson described the earrings as, "not just a single diamond. It was different from ordinary post diamond earrings that we see. These had diamond studded collars surrounding each earring, with approximately twelve one point diamonds in each collar." He stated that as the manager of a pawnshop, he often deals in jewelry and is familiar with the value of certain pieces of jewelry. In Pearson's opinion, the retail value of those particular earrings exceeded $5,000. Pearson maintained that Vincent Todd Donner's name sounded familiar and that he could have pawned items at his shop. The State rested, and appellant moved for a directed verdict, which the court denied.

Appellant testified that he had come to Arkansas from his residence in Missouri to work with this brother, Vincent Todd Donner, on a construction project. He testified that at the time, his brother was into drugs and indebted to a "dope man" for approximately $1,100 to $1,200. He then stated that his brother had given him the earrings and that he thought that they belonged to his sister-in-law because he did not have any reason to believe the earrings were stolen. He was not questioned regarding the sale he had made at the pawnshop. The defense rested and renewed its motion for a directed verdict, which was again denied by the court.

The judge found appellant guilty of theft by receiving, stating that "[e]ven if he didn't steal the items himself, certainly he had to have known these items were hot." The judgealso considered appellant's previous robbery conviction and sentenced him to twelve years in the Arkansas Department of Correction. He brings this appeal, and we affirm.

Appellant contends that, in attempting to prove its case, the State relied upon hearsay testimony to link the stolen jewelry to him and that the trial court erred in failing to sustain his objection to that testimony. As mentioned above, during direct examination, Robinson stated that after she reported the theft to the police, she began checking pawn shops to find her earrings. She testified, "I started checking pawnshops, and I went in and described the earrings, and I even told about the little missing thing that goes on the back. The pawnshop broker said, `I have those earrings.'"

Appellant claims to have been prejudiced by the challenged testimony because there was no connection established between Robinson's stolen earrings and the earrings appellant sold to the pawn shop. He argues that because neither the earrings Pearson bought nor a photograph of them were introduced into evidence and that because Robinson was never asked to identify the earrings that Pearson bought as hers, the only way the State connected Robinson's stolen jewelry to that which Pearson bought was through Robinson's testimony about what the pawnshop owner said to her, that is, "I have those earrings." Appellant does not dispute that he sold earrings to Pearson. He argues, instead, that the earrings that were sold to Pearson were not the earrings owned by Robinson. He also argues that because the judge did not state that he was not considering the statement, this court should presume that he did, in fact, consider it in finding him guilty.

Hearsay is a statement, other than the one made by the declarant while testifying atthe trial or hearing, offered in evidence to prove the truth of the matter asserted. See Ark. R. Evid. 801. Hearsay is not admissible except as provided by law or by the rules of evidence. See Ark. R. Evid. 802. If this court deems the statement to be hearsay, then it must consider whether it was sufficiently prejudicial to mandate reversal. Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996). In making this determination, this court considers whether the evidence of guilt is overwhelming and whether the error is slight. If so, this court may declare the error harmless and affirm. Id. Prejudice is not presumed, and we will not reverse where the evidence erroneously admitted was merely cumulative. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000); Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996).

In this case, appellant cannot complain that he was prejudiced by the statement because the statement was merely cumulative of other evidence presented. Robinson testified that on approximately December 15, she discovered that her jewelry had been stolen. She said she had last seen the jewelry on December 7 or 9 when she had last worn it. Included in her missing jewelry was a pair of earrings. Robinson described the diamond earrings as ones that also had the "round solid diamond jackets that went around them." She said that because the earrings were too large for the jackets, she had taken them to a jeweler and had "screw-on backs" put on them.

Her ex-husband, who purchased the earrings, described them as "standing up tall on a gold stem" and weighing a little more than one-half carat each. He stated that one of the stems was broken and that Robinson had it fixed. He also stated that there were jackets thatwent with the earrings. In addition, he testified that appellant's brother told him that appellant had stolen the earrings.

Appellant did not deny that he sold some earrings to Pearson. Nor does he dispute Pearson's testimony that Easy Cash Pawn shop has a record of a transaction involving him that occurred on December 8, at 11:35 a.m. when he brought in a pair of diamond earrings, approximately one-half carat each that match the description of Rachael Robinson's earrings. Rather, appellant testified that the earrings he sold were given to him by Todd Vincent Donner, his brother, who was indebted to drug dealers for $1,100 to $1,200, whose electricity, gas, and water had been shut off, and who would inadequately support his wife and children. Understandably, the judge stated that he did not believe appellant's story.

Appellant's argument, that the statement of the unidentified pawn shop broker, "I have those earrings," is the only connection between himself and the stolen earrings is not supported by the record. This evidence was cumulative in that other evidence was introduced that sufficiently tied appellant to the stolen earrings.

Based upon this evidence, the trial court could have properly concluded that the earrings sold to Pearson by appellant were the same earrings missing from Robinson's home. Therefore, we find that the statement was cumulative of other evidence presented that sufficiently connected the earrings appellant sold at the pawnshop to the earrings that were stolen from Robinson's home.

Affirmed.

Jennings and Stroud, JJ., agree.