Arthur Mallett v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION II

ARTHUR MALLETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-00515

JULY 5, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR1999-2068]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Appellant, Arthur Mallett, appeals from three convictions and a probation revocation. On November 10, 1999, in a bench trial, appellant was convicted of breaking or entering and his probation was revoked. On that same date, appellant was also convicted of misdemeanor theft of property in connection with the breaking or entering; the trial court merged the misdemeanor theft of property into the felony. On December 7, 1999, again in a bench trial, appellant was found guilty of possession of a controlled substance. Appellant was sentenced as a habitual offender, and sentencing on all the offenses was held on December 20, 1999. Appellant was sentenced to thirty-six months in the Arkansas Department of Correction for the breaking or entering conviction and thirty-six months' imprisonment, with six months suspended, for the probation revocation and was also sentenced to thirty-six months' imprisonment for the possession of a controlled substanceconviction. The trial court did not

impose any additional sentence for the misdemeanor theft of property conviction. The court ordered the sentences to be served consecutively. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Supreme Court and the Court of Appeals, his lawyer has filed a motion to withdraw as counsel on the ground that there is no merit to this appeal. Appellant was notified of his right to file a pro se list of points on appeal within thirty days, and appellant has exercised that right. The State has filed a brief in response to appellant's points on appeal.

Counsel's motion was accompanied by a brief and abstract of the record referring to matters in the record that might arguably support this appeal. Counsel states that no reversible error was committed in this case. The State agrees with appellant's counsel that there is no merit to the appeal. Appellant's counsel notes the following five instances where the trial court ruled adversely to appellant: (1) the denial of a motion for a directed verdict in the breaking or entering charge, (2) an objection to a proper foundation for testimony regarding appellant's probation conditions in the probation revocation proceeding, (3) an objection to a proper foundation for a picture of appellant placed in appellant's probation file in the probation revocation proceeding, (4) the denial of a motion to suppress cocaine in the possession of a controlled substance conviction, and (5) the denial of a motion for a directed verdict in the possession of a controlled substance conviction.

First, appellant moved for a directed verdict at the close of the State's case; his motion was based on misidentification. At the close of all of the evidence, appellant again argued misidentification. The trial judge denied both motions. A directed-verdict motion is treatedas a challenge to the sufficiency of the evidence. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). When the sufficiency of the evidence is challenged, the appellate court considers only evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id.

Arkansas Code Annotated section 5-39-202(a) (Repl. 1997) states that,

A person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, coin-operated amusement or vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box, fare box on a bus, or other similar container, apparatus, or equipment.

Arkansas Code Annotated section 5-36-103(a)(1) and (4) (Repl. 1997) states that,

A person commits theft of property if he: (1) Knowingly 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.

Theft of property is a Class A misdemeanor if: (A) The value of the property is five hundred dollars ($500) or less.

Appellant challenges the sufficiency of the evidence on the grounds of mistaken identity. However, Mr. Ferguson and his fiancée both identified appellant as the person they caught inside Mr. Ferguson's car on April 25, 1999. Both described appellant as wearing blue hospital scrubs. Mr. Ferguson's testimony also showed that after he approached appellant and asked him what he was doing inside his vehicle, appellant quickly sped away on a bicycle; Mr. Ferguson chased and caught appellant, knocking appellant off of his bicycle to the ground. However, appellant jumped up and sped away. Mr. Fergusontestified that all that was missing from his vehicle was some loose change. That same evening police arrived at appellant's house to investigate a domestic disturbance call, and police learned that appellant had an active warrant out of the North Little Rock Police Department. When the officers first spoke with appellant, he was bleeding from the chin. Appellant wanted to put on some clothes before being transported to the police station, so the officer followed appellant into his bedroom. The officer then noticed a pair of blue scrubs with blood on them in the floor of appellant's bedroom. The officer was aware of the breaking or entering earlier in the evening via a radio broadcast; due to the location of appellant, the blue scrubs, and the bloody chin, he became suspicious that appellant might have been involved. The officer had Mr. Ferguson identify appellant before appellant was taken to the station. Furthermore, appellant himself testified that he went to the store that evening on his bicycle, and he was wearing blue scrubs. Clearly there was sufficient evidence to identify appellant and support his convictions of breaking or entering and misdemeanor theft of property.

Second, appellant objected to the lack of foundation for the probation officer's testimony as to appellant's probation conditions and the photo of appellant from the probation file introduced during the probation revocation proceeding. Appellant's argument was based on the fact that Priscilla Davidson was appellant's current probation officer. Peggy Ammons was the probation officer who was present when appellant signed his probation conditions. At the time of the hearing, Ammons was no longer employed as a probation officer. Arkansas Code Annotated section 5-4-310(c)(2) (Repl. 1997) states thatin revocation hearings, "[t]he court may permit the introduction of any relevant evidence of the alleged violation, including letters, affidavits, and other documentary evidence, regardless of its admissibility under the rules governing the admission of evidence in criminal trials." Ms. Davidson testified that she recognized State's Exhibit 7 as appellant's file, and that although she had never met with appellant, she recognized his picture in the file. Inside appellant's file was a copy of the "Conditions of Release on Probation," containing appellant's signature at the bottom. Ms. Davidson further testified that probation records are kept in the normal course of business at the probation office and that it is routine practice to bring clients to the probation office following sentencing, to read the conditions of probation to them, and to have them sign the conditions. We find the trial court did not err in admitting the evidence from the probation file.

Third, appellant made a motion to suppress the cocaine in the possession of a controlled substance conviction. Appellant specifically argued that the pat down search was illegal. The trial court denied appellant's motion to suppress. In reviewing a trial court's denial of a motion to suppress, this court makes an independent determination based on the totality of the circumstances. Syakhasone v. State, 72 Ark. App. 385, 39 S.W.3d 5 (2001); see also Tabor v. State, 333 Ark. 429, 971 S.W.2d 227 (1998). We reverse the trial court only if its ruling was clearly against the preponderance of the evidence. See id.

Officer Kenneth Livingston testified that while he and Officer Green were patrolling an area well known for drug and criminal activity, they came into contact with appellant. Appellant was walking down the street; it was approximately midnight. Officer Livingstonand Officer Green exited their patrol car and began walking towards appellant. Before either of the officers said or did anything other than offer a greeting, appellant walked directly up to the officers and said, "Here's my ID. I don't have anything on me. You can pat me down." Officer Livingston responded, "Let's see [your identification]." As a result of appellant's consent, the officers conducted a pat down of appellant, finding three off-white rocks they suspected to be cocaine. After the pat down and discovery of the substance, the officers called for Officer Rhodes and Officer Williams to come to the scene because Officer Livingston did not have a field test kit in his patrol car. After a field test determined the substance to be cocaine, appellant was arrested and charged with possession of a controlled substance.

Arkansas Rule of Criminal Procedure 11.1 provides that: "An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search or seizure." A validly-obtained consent justifies an officer in conducting a warrantless search, with or without probable cause. Stout v. State, 320 Ark. 552, 898 S.W.2d 457 (1995). It is the State's burden to prove by clear and positive testimony that consent to a search was freely and voluntarily given, and that there was no actual or implied duress or coercion. Scroggins v. State, 268 Ark. 261, 595 S.W.2d 219 (1980). We review the evidence in the light most favorable to the State and consider the totality of the circumstances in determining whether the State met its burden. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). We will affirm a finding of voluntariness unless that finding is clearly against the preponderance of the evidence. Id. Although appellant testifiedthat he did not give the officers the consent to search him, his testimony is in direct conflict with that of the officers. Faced with the two versions of what transpired, the trial court made a credibility determination of which witness to believe, and the credibility of the witnesses in this instance was for the trial court to weigh and assess. Mills, supra. Based on our standard of review, we cannot say the trial court erred in denying the motion to suppress.

Fourth, appellant made a motion for a directed verdict in the possession of a controlled substance conviction. The basis for appellant's motion for a directed verdict was essentially the same as was argued in the motion to suppress, that the initial search was illegal, and therefore, the seizure of the cocaine was illegal as well. The trial court denied appellant's motion for a directed verdict. As discussed above, when reviewing a trial court's denial of a directed-verdict motion when the sufficiency of the evidence is challenged, the appellate court considers only evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Blockmon, supra. Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id. Here, the officers testified that they saw appellant late one evening in a suspicious neighborhood and that as they approached appellant, he consented to a pat down. Three off-white rocks were found on appellant as a result of the pat down, and appellant was arrested. Although appellant's account of the events that evening were in conflict with the officers, we do not pass on the credibility of witnesses. See Johnson v. State, 70 Ark. App. 343, 19 S.W.3d 66 (2000). We agree with appellant's counsel that the trial court did not err in denying appellant's directed-verdict motion on the charge ofpossession of a controlled substance.

We now address appellant's pro se list of points on appeal. First, appellant argues that the officers did not have a warrant to search his home in relation to the breaking or entering conviction. Second, appellant argues that the denial of the motion to suppress the cocaine, in relation to the possession of a controlled substance conviction, was error. Third, appellant argues that the police officers' testimony was inconsistent in the possession of a controlled substance proceeding. Finally, appellant argues it was error to sentence him as a habitual offender. We find these arguments are without merit.

Appellant's first and fourth arguments on appeal, (1) that the officers did not have a warrant to search his home regarding the arrest for the breaking or entering conviction, and (2) that the trial court erred in sentencing him as a habitual offender, were not preserved for appeal. Appellant never presented the trial court with either of these arguments; therefore, they were not preserved for appeal. See State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). Because these issues were not preserved for appeal, we do not consider them. Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997).

Second, appellant argues that the denial of the motion to suppress the cocaine, in relation to the possession of a controlled substance conviction, was error. This issue was addressed in appellant's counsel's brief and previously discussed in this opinion.

For appellant's third point on appeal, he argues that the officers' testimony was inconsistent in the possession of a controlled substance proceeding. However, the determination of credibility is solely within the province of the fact-finder. McChristian v.State, 70 Ark. App. 514, 20 S.W.3d 461 (2000) (citing Stephenson v. State, 334 Ark. 520, 975 S.W.2d 830 (1998)). Although appellant's testimony was in conflict with that of the officers', resolution of conflicts in testimony and assessment of the credibility of witnesses is for the fact-finder. See Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987). Furthermore, the trial court is not required to believe any witness's testimony, especially that of the accused, since he is the person most interested in the outcome of the case. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989).

From our review of the record and the brief presented to this court, we find that there has been full compliance with the requirements of Rule 4-3(j). This appeal is without merit, and counsel's motion to be relieved is granted.

Bird and Roaf, JJ., agree.