Gregory Andre Barnes v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION II

GREGORY ANDRE BARNES

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-120

December 19, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

[NOS. CR 96-3636, CR 99-1274]

HON. JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Gregory Andre Barnes appeals from his conviction at a bench trial of second-degree forgery and from the revocation of his probation. He challenges the sufficiency of the evidence to support both findings. We affirm.

Appellant pleaded guilty in 1997 to violation of the Arkansas Hot Check Law. He was placed on supervised probation for a period of five years subject to various conditions, including that he not violate the law and that he report to his probation officer monthly. Subsequently, appellant was charged with second-degree forgery and attempted theft by deception. The State filed a separate petition to revoke appellant's earlier probation, alleging that he violated the conditions of his probation by committing second-degree forgery and attempted theft by deception, and by failing to report to his probation officer. After a bench trial, appellant was acquitted of attempted theft but found guilty of second-degree forgery.

The parties then agreed that the evidence presented at trial could be considered by the trial court for the purposes of the petition for revocation. After two additional witnesses testified, the probation officer and appellant, the trial court found that appellant had violated the conditions of his probation and ordered the probation revoked. Appellant was sentenced to thirty-six months' imprisonment, with eighteen months suspended, for the forgery conviction; he was sentenced to sixty months' imprisonment, with fifty-four months suspended, for the earlier hot check offense.

Appellant first contends that his conviction for second-degree forgery is not supported by substantial evidence. We cannot reach this argument, however, because it was not preserved for appeal. Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in part that, in order to preserve for appeal any issue pertaining to the sufficiency of the evidence presented at a nonjury trial, the defendant must make or renew a motion to dismiss at the close of all of the evidence. Failure to challenge the sufficiency of the evidence at trial in the manner and at the time required in the rule constitutes a waiver of the issue on appeal.

Here, appellant made a dismissal motion at the close of the State's case-in-chief, and he renewed the motion at the close of his own case. The motions were denied. However, because of some indication during appellant's case that his pretrial statement may have been induced by promises allegedly made by the police, the trial court then called its own witness, police officer Jim Bailey. No objection to this procedure was made, either below or on appeal, and both the State and appellant questioned Officer Bailey regarding the circumstances surrounding appellant's pretrial statement. After the witness finishedtestifying, the court asked whether either party wanted to present any further witnesses, motions, or statements. Both parties declined, and the court found appellant guilty.

Appellant argues that his failure to renew his motion to dismiss after Officer Bailey's testimony should not bar his challenge to the sufficiency of the evidence. Appellant argues that the officer's testimony at the end of the trial was relevant only to the possible suppression of appellant's out-of-court statement as involuntary and not relevant to the issue of his guilt or innocence. Pointing out that he filed no motion to suppress, appellant argues that the witness's testimony was simply not pertinent to any issue in the case and, therefore, neither added nor detracted anything of substance since the renewal of his motion at the close of his own case-in-chief. We disagree. First, with regard to Rule 33.1's requirement that a motion to dismiss be made at the close of the case, our supreme court has said very clearly, "`Close of the case means close of the whole case, in other words, after the last piece of evidence has been received.'" Smith v. State, 347 Ark. ___, ___, ___ S.W.3d ___, ___ (December 13, 2001) (quoting King v. State, 338 Ark. 591, 595, 999 S.W.2d 183, 185 (1999)). Moreover, even were we to assume without deciding that it is unnecessary to renew a dismissal motion after irrelevant further testimony is heard, we cannot agree that Officer Bailey's testimony was irrelevant to the issue of whether the State had proven appellant's guilt. While the testimony may have gone to the voluntariness of appellant's custodial statement, it was also clearly relevant to the reliability of that statement and to the amount of weight that the fact finder should attach to it. Crane v. Kentucky, 476 U.S. 683 (1986); Kagebein v. State, 254 Ark. 904, 496 S.W.2d 435 (1973); Leach v. State, 38 Ark. App. 117,831 S.W.2d 615 (1992). Therefore, the trial court, sitting as fact finder, could have been influenced by Officer Bailey's testimony. See Smith v. State, supra. We conclude that appellant failed to preserve the issue of sufficiency of the evidence by failing to move for dismissal or to renew his earlier motion after the last witness's testimony.

Appellant next contends that the evidence was insufficient to support the revocation of his probation. While appellant failed to challenge the sufficiency of the evidence at the hearing, that failure does not bar presentation of the issue on appeal because Rule 33.1 does not apply to revocation proceedings. Barbee v. State, 346 Ark. 185, ___ S.W.3d ___ (2001). However, appellant attacks only the evidence that would support a finding that he committed second-degree forgery; he makes no argument concerning the evidence that he also failed to report to his probation officer. The petition to revoke charged appellant with both violations, and evidence was presented that, although the conditions of appellant's probation required that he report to his probation officer each month, he had not reported for approximately twenty-one months prior to the hearing. At the close of the hearing, the trial court simply found that appellant was "in willful violation of the rules of probation." The State was only required to prove that appellant violated one condition of his probation to support revocation. Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998); Ross v. State, 22 Ark. App. 232, 738 S.W.2d 112 (1987); Farr v. State, 6 Ark. App. 14, 636 S.W.2d 884 (1982). Because the trial court did not indicate that its findings were limited to appellant's commission of forgery, and because appellant does not challenge the sufficiency of the evidence that he failed to report for a long period of time, we need not address theissue that appellant does raise. See Farr v. State, supra; see also Camp v. State, 66 Ark. App. 134, 991 S.W.2d 611 (1999).

In any event, sufficient evidence was presented to support a finding that appellant committed second-degree forgery. Contrary to appellant's argument, the State did not limit the charge against appellant to any specific manner of committing the offense; in this respect, the amended petition to revoke charged him only generally with having "committed the offense of Forgery in the Second Degree." One way of committing second-degree forgery is to forge a written instrument that may create or otherwise affect a legal right, interest, obligation, or status. Ark. Code Ann. § 5-37-201(c)(1) (Repl. 1997). Here, there was evidence that appellant went into a furniture store, selected furniture, and applied for credit, using the victim's name and Social Security number. Although the application was not accepted and appellant took no merchandise from the store, execution of the credit application in the victim's name and using her Social Security number constituted forgery of a written instrument that may have created a legal right or obligation. From our review of the record, we cannot conclude that the finding that appellant committed second-degree forgery is clearly erroneous. See Standridge v. State, 290 Ark. 150, 717 S.W.2d 795 (1986).

Affirmed.

Stroud, C.J., and Griffen, J., agree.