Cleveland Wright v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

CLEVELAND WRIGHT,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-635

FEBRUARY 6, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR99-1023, CR98-1480,

HON. DAVID BOGARD, JUDGE

AFFIRMED IN PART; REVERSED AND DISMISSED IN PART

Appellant Cleveland Wright asserts that the circuit court committed reversible error by allowing a physician to state an opinion without presenting the proper basis for her qualification as an expert and, because the trial court had previously revoked his probation and executed on the conviction, that the circuit court lacked jurisdiction to impose any additional sentence. We affirm the circuit court's admission of the expert testimony, but reverse and dismiss the court's imposition of the additional twenty-year term of imprisonment because the circuit court lacked jurisdiction to take any further action after the sentence was put into execution. Factual and Procedural Background

Wright was charged with robbery, a Class B felony, in Pulaski County Circuit Court Case No. CR98-1480. Wright pleaded nolo contendere to the robbery charge and, on July9, 1998, a judgment and disposition order was entered placing him on probation for five years.

The State filed a probation revocation petition against Wright on October 1, 1998. Wright pled guilty to the probation violation on March 1, 1999, and the circuit court entered a judgment and disposition order placing Wright on probation for five years, sentencing him to 120 days' incarceration in the county jail, and imposing a fine and court costs of $500.

On February 24, 2000, in Pulaski County Circuit Court Case No. CR99-1023, the State filed an amended, two-count felony information against Wright, alleging that on or about December 2, 1998, Wright had committed rape, a Class Y felony, and second-degree battery, a Class B felony, against Kimberly Case. On September 26, 2000, a jury found Wright guilty of rape and third-degree battery and sentenced him to ten years' imprisonment for rape and to one year of incarceration in the county jail for the third-degree battery conviction.

In the meantime, in Case No. CR98-1480, second and third probation revocation petitions were filed by the State on June 17, 1999, and August 18, 2000, respectively. On September 26, 2000, after the jury had retired to deliberate the rape and battery charges in Case No. CR99-1023, a revocation hearing was held in Case No. CR98-1480. The circuit court found that Wright had violated conditions of his probation and, thus, revoked his probation and sentenced him to twenty years' imprisonment. The circuit court held that this twenty-year sentence was to run consecutively with the ten-year sentence of imprisonment Wright was to serve for his rape and third-degree battery convictions in Case No. CR99-1023. I. Expert Testimony

On appeal, Wright contends that the circuit court erred in overruling his objection to the testimony of the State's witness, Dr. Lori Bacon, that the victim, Kimberly Case, had been cut with a knife. Specifically, Wright claims that Dr. Bacon's testimony should not have been allowed because the State did not establish the specific nature of Dr. Bacon's training that would qualify her as an expert in identifying wounds caused by a knife. The State argues that the circuit court's holding was proper because sufficient evidence was presented concerning Dr. Bacon's training, and any alleged deficiencies merely go to the credibility of the expert testimony. We agree and affirm.

Rule 702 of the Arkansas Rules of Evidence provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." In accordance with Rule 702, testimony was presented that Dr. Bacon had completed medical school at the University of Arkansas for Medical Sciences in 1997, had completed a three-year residency in emergency medicine, and had specific medical training on treating cuts and stab wounds as well as practical experience with those types of injuries.

Whether a witness may give expert testimony rests largely within the sound discretion of the trial court, and that determination will not be reversed absent an abuse of discretion. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999). The court found that Dr. Baconmet the qualifying threshold as an expert witness and we have no reason to hold that there was an abuse of discretion. "Once an expert witness is qualified, the weakness in the factual underpinning of the expert's opinion may be developed upon cross-examination and such weakness goes to the weight and credibility of the expert's testimony." Suggs v. State, 322 Ark. 40, 43, 907 S.W.2d 124, 126 (1995) (citing Polk v. Ford Motor Co., 529 F.2d 259 (8th Cir.), cert. denied, 426 U.S. 907, (1976)). Thus, we hold that the circuit court did not abuse its discretion in allowing the testimony of Dr. Bacon.

Further, we hold that even if Dr. Bacon's testimony was erroneously admitted, it was harmless error because Wright's conviction of third-degree battery did not require a finding that he used a deadly weapon.

The jury was instructed on battery in both the second degree and third degree.

THE COURT: (AMCI 2d 1302) Cleveland Wright is charged with the offense of Battery in the Second Degree. To sustain this charge, the State must prove beyond a reasonable doubt that Cleveland Wright, with the purpose of causing physical injury to Kimberly Case, caused physical injury to Kimberly Case by means of a deadly weapon other than a firearm.

. . .

(AMCI 2d 302) If you have a reasonable doubt of the defendant's guilt on the charge of Battery in the Second Degree, you will then consider the charge of Battery in the Third Degree.

(AMCI 2d 1303) To sustain this charge, the State must prove beyond a reasonable doubt that Cleveland Wright, with the purpose of causing physical injury to Kimberly Case, caused physical injury to Kimberly Case.

Under these instructions, the use of a deadly weapon was not an element of the third-degree battery charge of which Wright was convicted. The jury could find Wright guilty of the lesser charge of third-degree battery without the necessity of finding that the offense wascommitted by means of a deadly weapon. The introduction of testimony by Dr. Bacon that Kimberly Case's wound was of the type caused by a knife was, therefore, harmless. Error is no longer presumed to be prejudicial; unless the appellant demonstrates prejudice accompanying error, we do not reverse. Lucas v. Grant, 61 Ark. App. 29, 962 S.W.2d 388 (1998). On appeal, we will not reverse a trial court's ruling on the admission of evidence absent an abuse of discretion nor will we reverse absent a showing of prejudice. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Since the element of deadly weapon was not a part of AMCI 2d 1303, which was given to the jury to consider in sustaining a charge of third-degree battery, Dr. Bacon's testimony could not have been prejudicial.

Further, the balancing of probative value against prejudice, pursuant to Ark. R. Evid. 403, is a matter left to the sound discretion of the trial judge, and his decision on such a matter will not be reversed absent a manifest abuse of that discretion. Id. Thus, we hold that the circuit court did not abuse its discretion in allowing the expert testimony to be introduced.

II. Jurisdiction

Wright also contends that the circuit court lacked jurisdiction to revoke his probation after a judgment and disposition order had been entered and put into execution by sentencing him to serve 120 days in the county jail and ordering him to pay $500 in fines and court costs. The States concedes error on this point and agrees with Wright that the trial court lacked jurisdiction to impose the twenty-year sentence of imprisonment and fine at the revocation proceeding on September 26, 2000, because the court had previously revokedWright's probation in case No. CR98-1480. We agree.

In Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), the supreme court explained the applicability of Act 1569 of 1999 to the jurisdiction of the trial court to modify sentences put into execution. Prior to this legislation, cases such as McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), and Harmon v. State, 317 Ark. 47, 876 S.W.2d 240 (1994), held that a court loses jurisdiction to take further action in a case after a sentence has been put into execution. As of April 15, 1999, Act 1569 of 1999 amended Ark. Code Ann. § 5-4-301(d) to empower trial courts to modify an original sentence, following a revocation hearing, up to the limits set in Ark. Code Ann. §§ 5-4-303 and 5-4-306. However, the Court held that the legislation does not apply to offenses committed prior to the effective date of the act. Bagwell v. State, supra.

On March 1, 1999, Wright's probation on CR98-1480 was revoked and he was sentenced to pay a fine, court costs, and serve 120 days in the county jail. Both the commission of the offense and the execution of the sentence occurred prior to the effective date of Act 1569, April 15, 1999. Thus, the circuit court lacked jurisdiction to take any further action in CR98-1480.

Affirmed in part; reversed and dismissed in part.

Pittman and Roaf, JJ., agree.