John Ransom v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

JOHN RANSOM

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-229

FEBRUARY 5, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2001-616]

HONORABLE WILLIARD PROCTOR, JR, CIRCUIT JUDGE

AFFIRMED in part; REVERSED and REMANDED in part

A trial court convicted John Ransom of one count of misdemeanor theft by receiving, placed him on probation for one year, fined him $350.00, and assessed court costs. The court costs billed to Mr. Ransom were $1,875.00. Mr. Ransom asserts three points on appeal: (1) that the evidence is insufficient to support his conviction; (2) that the motion to suppress on Fourth Amendment grounds was erroneously denied; (3) that the trial court should have granted the motion for reconsideration of costs. We hold that sufficient evidence supports the conviction, that the second argument was not preserved for appellate review, and that the trial court should have granted the motion for reconsideration of costs. Accordingly, we affirm the conviction, but reverse the amount of the assessed costs and remand to assess costs in accordance with Ark. Code Ann. § 16-10-305 (Supp. 2001).

Mr. Ransom owns Red Oak Auto Clinic and Red Oak Auto Salvage. On July 13, 2000,

officers from the Arkansas State Police, the Little Rock Police Department, the North Little Rock Police Department, and the Pulaski County Sheriff's Office went to appellant's business at Red Oak Auto Clinic to conduct a dealer inspection of the premises. While Corporal Perry of the State Police was speaking to one of Mr. Ransom's employees, Detective Files of the North Little Rock Police Department was standing beside a gray Cadillac parked in front of the business. He looked down and noticed that the vehicle identification number (VIN) plate on the dashboard was bent and scratched and that the rivets holding the plate in place had been changed. The condition of the plate led Detective Files to conclude that someone had tampered with the plate. Based on this observation, he opened the door of the vehicle to examine a secondary number on the door jamb used for vehicle identification. He discovered that this sticker had been completely removed. He next looked for and found a second VIN, which is called a secondary or confidential number, that is hidden for verification purposes when the car has been stolen and the VIN plate has been altered. This secondary VIN was different from the one displayed on the dashboard. The VIN displayed on the dashboard was for a 1992 Cadillac. The title history for the 1992 Cadillac identified by the dashboard VIN showed that Red Oak Auto Salvage purchased it from Clifton Auto Salvage on November 3, 1999, and sold it to Richard Gould on November 5, 1999. With no objection, Detective Files testified that the secondary, hidden VIN was for a 1990 Cadillac DeVille and that when he ran the secondary number it came back as a stolen vehicle.

When the inspection revealed that the second VIN belonged to a stolen vehicle, Detective Files and the other officers stopped the inspection and obtained a search warrant for the business. When the officers returned with the search warrant, Corporal Perry asked Mr. Ransom who owned the gray Cadillac. He initially replied that it was his, but after being told that the car had been stolen, he told Detective Files that it belonged to a customer. Mr. Ransom had no work orders orother documentation to explain the presence of the car.

At the conclusion of the State's evidence at trial, Mr. Ransom moved to dismiss arguing that the owner of the car from whom the car had been stolen, Mr. Tenney, did not testify that the Cadillac had been stolen from him; thus there was no evidence as to who owned the car on the day of the search. At the conclusion of all the evidence, he again moved to dismiss on the basis that the deprived owner had not testified, and on the basis of his own undisputed testimony of his lack of knowledge that the car was the stolen.

In reviewing a challenge to the sufficiency of the evidence, this court will affirm if there is substantial evidence to support the verdict. Pack v. State, 73 Ark. App. 123, 130, 41 S.W.3d 409, 414 (2001). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Id. The evidence, whether direct or circumstantial, must be of sufficient force that it compels a conclusion with reasonable and material certainty. Barnett v. State, 68 Ark. App. 38, 39, 3 S.W.3d 344, 347 (1999).

Mr. Ransom based his motion to dismiss on the fact that the deprived owner was not present at trial and that no one testified that Mr. Tenney was the owner of the vehicle at the time of the search. On appeal, he relies principally upon the case of King v. State, 250 Ark. 523, 465 S.W.2d 712 (1971) for the proposition that testimony that the property is stolen is not sufficient to support a theft by receiving charge and offers the following excerpt in his brief:

Although an officer testified that the vehicle was reported stolen, there was no competent evidence establishing the true ownership of the property. Since the alleged ownership in the information is a material and vital element in the alleged offense, we must hold that the evidence supporting this allegation was insufficient.

King v. State, 250 Ark. at 524, 465 S.W.2d at 712 (citations omitted).

Mr. Ransom's reliance on King is misplaced. King involved the offense of possession of stolen property, codified at Ark. Stat. Ann. § 41-3938 (Repl. 1964), in which the ownership of the vehicle involved was a material and vital element of the offense:

Any person who shall possess stolen goods, money or chattels which exceed the aggregate value of thirty-five dollars ($35.00), knowing them to be stolen, with intent to deprive the true owner thereof, shall be guilty of a felony[.]

Ark. Stat. Ann. § 41-3938 (Repl. 1964) (emphasis added).

The offense for which Mr. Ransom was convicted was theft by receiving:

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing it was stolen or having good reason to believe it was stolen.

Ark. Code Ann. § 5-36-106(a) (Repl. 1997).

In King, the State was required to prove the ownership of the property to show that the accused intended to deprive the owner of the property. The successor offense of theft by receiving focuses upon the fact that the accused had reason to believe the property was stolen, not the identity of the deprived owner nor that the accused intended to deprive the lawful owner of the property.

The State presented testimony that the vehicle was stolen and no contemporaneous objection to this testimony was made. Testimony established that some identification indicia were removed and others altered. The VIN displayed on the dashboard corresponded with paperwork for a vehicle that apparently had been lawfully conveyed to Mr. Ransom then lawfully conveyed by Mr. Ransom to another party while the confidential VIN belonged to a stolen vehicle for which Mr. Ransom had no paperwork. When Corporal Perry asked Mr. Ransom who owned the car, he replied that he did, but changed his answer after being told that the car was stolen to saying the car belonged to one of his customers. He produced neither ownership documents nor orders to perform work on the car for a customer. The unexplained possession or control by a person of recently stolen property orthe acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen. Jones v. State, 20 Ark. App. 1, 722 S.W.2d 871 (1987); Ark. Code Ann. § 5-36-106(c), (Repl. 1997). The trier of fact may consider and give weight to any false and improbable statements made by an accused in explaining suspicious circumstances. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836, 839 (1998). Therefore, sufficient evidence supports the finding that Mr. Ransom was in possession of property that he knew to be or had reason to believe was stolen.

Mr. Ransom argues in his brief that although his motion to dismiss did not explicitly state that is was based upon the State's failure to prove that the vehicle belonged to Mr. Tenney as set forth in the information, that Mr. Ransom's argument at trial nevertheless implicitly included the argument that there was a fatal variance between the information and the state's proof, even if the term, fatal variance, was not used. Mr. Ransom does not cite any authority for his argument that this basis was implicitly included his motion. We do not consider arguments on appeal which are not supported by convincing argument or authority. Womack v. State, 36 Ark. App. 133, 819 S.W.2d 306 (1991).

Mr. Ransom argues in the alternative that no objection was necessary, for to be convicted of a crime for which one has not been charged or has been charged without adequate notice of the charge is a structural defect in the trial and a denial of due process that can be raised for the first time on appeal. That premise is inapplicable here. A criminal information must contain the elements of the crime so that a defendant can adequately prepare the case against him or her. Williams v. State, 302 Ark. 234, 788 S.W.2d 241 (1990). As set forth above, the information contained the elements of the crime and proof of the specific owner was unnecessary. The fact that the information contained the name of the owner from whom the vehicle was stolen provided Mr.Ransom with additional information related to the charge. The additional information in no way lessens the adequacy of the notice of the charge, and the testimony at trial did not contradict the information. Therefore, this argument fails as well.

As for Mr. Ransom's second point for reversal, he failed to preserve for appellate review any issue pertaining to his suppression motion. Prior to trial, Mr. Ransom filed a motion to suppress evidence on the basis that the affidavit for the warrant did not establish reasonable cause for a search. The motion asserted that the warrant was a "general" warrant and that the resulting search was therefore illegal. At the beginning of the bench trial, Mr. Ransom failed to ask the court to consider his suppression motion. "[D]uring a bench trial, it is not necessary to make a contemporaneous objection when the contested evidence is offered if the appellant has renewed the previously filed motion to suppress at the beginning of the trial, and the court agrees to consider the motion simultaneously with the evidence on the merits." Stewart v. State, 332 Ark. 138, 144, 964 S.W.2d 793, 796 (1998)(emphasis added). The court in Stewart explained:

It is well settled that in order to preserve an issue for appeal the appellant must make an objection contemporaneously with the alleged error. Smith v. State, 330 Ark. 50, 953 S.W.2d 870 (1997). In State v. Brummett, 318 Ark. 220, 885 S.W.2d 8 (1994), we explained that the reason for the contemporaneous-objection rule is to give the trial court an opportunity to fully understand the reason for the disagreement with its proposed action before it renders a ruling. If, however, the motion to suppress is orally renewed at the beginning of a bench trial, and the trial court agrees to consider the motion to suppress at the same time it considers the evidence, there is no risk that the court will be unfamiliar with the nature of the objection. Under these circumstances, we hold that a contemporaneous objection is not required in order to preserve the issue for appeal.

Stewart, 332 Ark. at 143, 964 S.W.2d at 796.

By failing to renew his suppression motion at the beginning of the bench trial and failing to ask the court to consider the motion along with the merits of the State's case against him, Mr. Ransom waived his suppression motion and failed to preserve the issue of its denial for review.

Therefore, we affirm on that point.

However, we agree with Mr. Ransom's third point that the court should have granted his motion for reconsideration of costs. The court costs billed to the appellant were $1,875.00. Arkansas Code Annotated Sections 16-10-301 (Repl. 1999) & 302 (Repl. 1999 & Supp. 2001) mandate assessment of uniform court costs throughout the State. Arkansas Code Annotated Section 16-10-305(a)(1) (Repl. 1999 Supp. 2001) sets the court costs in circuit court for a misdemeanor violation of state law at one hundred fifty dollars ($150.00). Furthermore, Arkansas Code Annotated Section 16-10-305(b)(2)(d) (Repl. 1999 & Supp. 2001) directs that "[n]o . . . circuit court shall assess or collect any other court costs other than those authorized by this act, unless specifically provided by state law." Accordingly, we reverse the trial court's assessment of costs and remand with directions to enter an order for costs in the amount of $150.00.

Affirmed in part, reversed and remanded in part.

Hart and Bird, JJ., agree.