Kenneth Dean Walker v. State of Arkansas

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ar00-998

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE KAREN R. BAKER

DIVISION II

KENNETH DEAN WALKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-998

JUNE 13, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR97-1196, CR98-651,

CR98-3936, CR98-4334]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Appellant brings this appeal from three convictions and one probation revocation. A bench trial on a felony theft by receiving charge and revocation of appellant's probation was held on December 28, 1998. A second bench trial on the charges of aggravated robbery and a second felony theft by receiving charge was held on February 22, 2000. At the conclusion of each trial, the court found appellant guilty of all charges; at the conclusion of the February 22, 2000 bench trial, the court sentenced appellant to five years' imprisonment for his revocation and six years' imprisonment for each of the two theft by receiving convictions. The court sentenced appellant to twelve years' imprisonment for his aggravated robbery conviction. The court ordered all four of the sentences to be served concurrently. On appeal, appellant

argues the proof is insufficientto support the convictions and probation revocation.1 We hold there was sufficient evidence to affirm his conviction of felony theft by receiving and the revocation of his probation in the December 28, 1998 bench trial. We also affirm the second felony theft by receiving conviction and the aggravated robbery conviction because we find appellant's argument was not preserved for appeal.

On appellate review of a sufficiency of the evidence argument, we seek to determine whether the verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). Substantial evidence, whether direct or circumstantial, must be of "sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other." Id. at 104, S.W.2d at 270. In determining whether the evidence was substantial we consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Id. Evidence is not substantial whenever the fact-finders are left "only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion." Surridge v. State, 279 Ark. 183, 185, 650 S.W.2d 561, 562 (1983).

On December 28, 1998, appellant was convicted of felony theft by receiving of a Honda four-wheeler owned by Glen Ross. Appellant specifically contends that the State failed to prove that the market value of the four-wheeler was greater than $500. At trial, testimony by Mr. Ross described the four-wheeler as a 1996 Honda 250, 4 tracks. Mr. Ross also testified as to the valueof the four-wheeler; the estimated book value at the time it was stolen was approximately $1,800. Mr. Ross obtained the information regarding value from the dealer's approximation as to book value the day after it was stolen; as a result, Mr. Ross's testimony was based upon hearsay. Our supreme court has held that on direct examination, a witness expressing an opinion as to value should not be allowed to repeat hearsay statements or to testify about other matters inadmissible under the rules of evidence. Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980). However, an owner testifying as to value might rely, wholly or in part, upon hearsay. Arkansas State Highway Comm'n v. Russell, 240 Ark. 21, 398 S.W.2d 201 (1966). In addition, the evidence adduced here as to value was admitted without appellant's objection. Hearsay, admitted without objection, may properly be considered, Ply, supra, including that which may have been erroneously admitted. See Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). For this reason, we conclude that the testimony of Mr. Ross was sufficient to establish that the four-wheeler had a value greater than $500.

Also on December 28, 1998, appellant's probation was revoked. Appellant contends that the probation revocation must be vacated based on the insufficiency of the evidence. On appeal of a revocation, the revocation will not be overturned unless the decision is clearly against the preponderance of the evidence. Billings v. State, 53 Ark. App. 219, 921 S.W.2d 607 (1996). We must give due regard to the trial court's superior position in determining the credibility of witnesses and the weight to be given their testimony. Id. Even evidence that is insufficient to convict a person of the offense may be sufficient to revoke probation. Id. We have determinedthat the evidence was sufficient to support appellant's conviction of felony theft by receiving. The evidence is also sufficient to meet the lesser burden of a preponderance of the evidence required for the revocation of appellant's probation.

Appellant also contends that there was insufficient evidence to support his convictions for felony theft by receiving and aggravated robbery. However, we do not reach the merits of this argument because appellant failed to preserve it for appellate review. Rule 33.1 of the Arkansas Rules of Criminal Procedure states that,

In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence. The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.

See Ark. R. Crim. P. 33.1(b) and (c); see also Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). In the February 22, 2000 bench trial, appellant moved for a directed verdict at the close of the State's evidence, and the motion was denied. Appellant failed to renew his motion for a directed verdict at the close of all the evidence. This precludes our review of appellant's challenge to the sufficiency of the evidence as to his February 22, 2000 convictions.

We conclude there was sufficient evidence to support appellant's December 28, 1998 conviction of felony theft by receiving and probation revocation. Appellant's challenge to his February 22, 2000 convictions for felony theft by receiving and aggravated robbery were not preserved for appellant review due to his failure to renew his motion for a directed verdict at theclose of all the evidence.

Affirmed.

Bird and Roaf, JJ., agree.

1 Appellant was also charged and convicted of breaking or entering, but he does not appeal that conviction.

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