Kason Smith v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, JUDGE

DIVISION II

KASON SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-962

May 15, 2002

AN APPEAL FROM PULASKI COUNTY CIRCUIT COURT, 4TH DIVISION

CR00-3250 & CR99-3398

HONORABLE JOHN LANGSTON, CIRCUIT JUDGE

AFFIRMED

On May 3, 2001, Kason Smith was convicted of theft by receiving and fleeing, and the trial court sentenced him to three years' imprisonment on each of the two charges, to be run concurrently, with one year suspended imposition of sentence for each of the two charges. The trial court also revoked Smith's earlier probation for breaking-and-entering conviction and sentenced Smith to three years' imprisonment, to be served consecutively to the two new concurrent sentences. On appeal, Smith contends; 1) that the trial court erred in denying his motion to dismiss the fleeing charge, because the State failed to prove that when he drove a vehicle through a house there was a substantial danger of death or serious physical injury to the homeowner, and 2) that the trial court lacked jurisdiction to hold a probation revocation proceeding because his prior sentence had been put into execution. We disagree and affirm.

On September 22, 2000, Smith was charged in a three-count felony information of having committed, on or about July 12, 2000, the offenses of theft by receiving, second-degree criminalmischief, and fleeing. On November 15, 2000, the State also filed a petition to revoke Smith's earlier probation claiming that the three-count felony information was a ground for revocation as well as other grounds.

On March 26, 2001, a trial was held on these counts, and during the trial, it was established that Smith was in possession of a maroon 1989 Toyota Camry automobile that had been stolen from Charlie and Willie Mae Smith. Ms. Smith testified that when the car was stolen, it was in good condition and that she had paid $3,000 for it three-and-a-half years ago.

Little Rock Police Officer Daniel England testified that on July 12, 2000, he was driving in the 1800 block of South Cedar Street when he came into contact with Smith at 10:05 a.m. He stated that he observed the maroon vehicle driving down the middle of Center Street and that he got behind the vehicle and activated his blue lights, at which time the vehicle sped off and something was thrown out of the window. Officer England observed the vehicle run a stop sign and overcompensate on a curve in the road at which time the vehicle "shot through a vacant lot and drove through the north side of the residence at 2008 Cedar." He stated that Smith then exited the side of the house in which the vehicle had entered and that he ordered Smith to the ground and took him into custody. Officer England further stated that Smith "drove through the house literally," and that the car had been driven through a bedroom and had come to rest in the living room. He noted that Mr. McClure, the homeowner, was inside the home but that Mr. McClure stated that "he was in the back watching TV at the time."

After the State's case-in-chief, Smith moved for a directed verdict on each of the three counts. With regard to the fleeing charge, Smith moved for a dismissal on the basis that the State had failed to prove that he had operated the vehicle in question in such a manner that created a substantial risk of death or serious physical injury. The trial court denied the motion. At the closeof all the evidence, Smith renewed his directed verdict motion, and the trial court again denied the motion.

The trial court found Smith not guilty of second-degree criminal mischief, but did find him guilty of theft by receiving and fleeing. Immediately after this proceeding, Smith's probation revocation hearing was held, and the trial court granted the State's petition requesting revocation. On May 3, 2001, a sentencing hearing was held. The trial court sentenced Smith to three years' imprisonment in the Arkansas Department of Correction on each charge of theft by receiving and fleeing, but suspended imposition of one year for each of the two convictions, with the sentences to be run concurrently. With regard to Smith's probation revocation, the trial court sentenced Smith to three years' imprisonment in the Arkansas Department of Correction and ran this sentence consecutively to the two concurrent sentences he had received for theft by receiving and fleeing.

On appeal, Smith argues that the trial court erred in denying his motion for directed verdict, because the State failed to introduce substantial evidence that, when he drove the vehicle in question into a house and through a bedroom into the living room, he created a substantial danger of death or serious physical injury to the homeowner, who was watching television in a back room of the house. Specifically, he contends that the State never proved how fast the vehicle was traveling when it entered the house, that the State failed to prove whether the residence was solidly constructed or was so flimsy that it was about to fall down on its own, that the State failed to prove whether the 1989 Toyota Camry was a large, heavy automobile or was rather a compact, light-weight vehicle, and that the State failed to prove how close the vehicle came to striking the homeowner. The State claims that there is substantial evidence that Smith operated the vehicle in such a manner as to create a substantial danger of death or serious physical injury to others, particularly because the vehiclewas driven through the side of an occupied home with sufficient force to have the vehicle go completely through a bedroom and come to rest in the living room.

On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Steward v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence forceful enough to compel a conclusion one way or the other, beyond suspicion or conjecture. Weeks v. State, 64 Ark. App. 1, 977 S.W.2d 241 (1998). In determining the sufficiency of the evidence, the appellate court views the evidence in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Id.

Fleeing by means of a vehicle when a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer is a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle in such a manner that creates a substantial danger of death or serious physical injury to another person or persons. Ark. Code Ann. §§ 5-54-125(a) &(d)(1) (Repl. 1997). In Weeks, supra, this court found substantial evidence to support the appellant's conviction for Class D felony vehicular fleeing. In that case, an officer testified that Weeks exceeded the speed limit by fifty miles per hour; passed vehicles on the left of the double yellow line, which endangered the safety of the passengers in other vehicles; approached a curve at a dangerously high rate of speed; and entered a convenience store parking lot at approximately eighty miles per hour while customers were present. We stated that this evidence supported the jury's determination that while the appellant was fleeing from Officer Thomas, Weeks purposely operated his vehicle in a manner that created a substantial danger of death or serious physical injury to others.

The facts of the present case are equally sufficient to support Smith's conviction for classD felony vehicular fleeing. Officer England stated that when he first observed Smith, he was straddling the center lane with the maroon vehicle and that when the blue lights were activated, Smith sped off and threw something out of the window. Officer England further stated that Smith ran a stop sign, was headed straight for an embankment, overcompensated, shot through a vacant lot, and drove the vehicle through the residence, entering a bedroom and coming to rest in the living room. Although Officer England testified that the homeowner stated that he was in a back room watching television and was unharmed, we find that substantial evidence supports Smith's conviction because he purposely operated the vehicle in such a manner that created a substantial danger of death or serious physical injury to another person, Mr. McClure, under circumstances manifesting extreme indifference to the value of human life.

Smith also argues that the trial court lacked jurisdiction to revoke his probation and to sentence him to three years' imprisonment because his sentence had been put into execution. The State contends that Smith's assertion that McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), and Harmon v. State, 317 Ark. 47, 876 S.W.2d 340 (1994), are controlling is incorrect, as these cases no longer reflect the current law in Arkansas because they were decided prior to the 1999 amendment to the Arkansas Code that provides that a trial court has jurisdiction to modify a defendant's sentence more than once. However, in the instant case, Smith's probation was revoked for the first time, and McGhee and Harmon concern modifications of probated and suspended sentences, not the first time revocation of probation. Moreover, Smith had been placed on probation for three years and fined $300 in the earlier case; the trial court sentenced him to three years imprisonment on revocation of the sentence, and did not modify the sentence.

Smith's reliance on Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), is likewise misplaced, for two reasons. In Bagwell, the supreme court discussed the applicability of Act 1569of 1999 to the jurisdiction of the trial court to modify sentences put into execution, regardless of the number of prior revocations, and concluded that the trial court had lost jurisdiction to amend or modify the original sentence, which had been put into execution, because Act 1569 was not in effect at the time Bagwell's crimes were committed in October 1997. Here, however, Smith's probation was simply revoked. Moreover, even if it had been a modification of sentence, rather than a revocation, Smith's argument would still be unavailing because the crimes he was accused of in the earlier case occurred on August 19, 1999, and Act 1569 became effective on April 15, 1999.

Affirmed.

Stroud , C.J., agrees.

Pittman, J., concurs.