Jasper Vick II v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

JASPER VICK II

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-482

JUNE 25, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION

[NO. CR 2000-408, CR 97-2657]

HONORABLE JOHN BERTRAN

PLEGGE, JUDGE

AFFIRMED

Appellant Jasper Vick II was convicted by a jury of Class B felony theft by receiving and sentenced to five years in prison. On the same day, the trial court found that Mr. Vick violated the conditions of his probation. Upon revoking his probation, the trial court sentenced Mr. Vick to five years in prison, to be served concurrently with the five-year sentence for theft by receiving. We affirm.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j)(1) of the Rules of the Arkansas Supreme Court, Mr. Vick's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Appellant's counsel's motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, including all rulings adverse to the appellant, and a statement as to why each point cannot arguably support an appeal. Mr. Vick was provided a copy of his counsel's brief andnotified of his

right to raise pro se points on appeal within thirty days, but has declined to do so. Because no pro se points have been filed, the State did not file a brief in this case.

The victim, Jerry Guyton, testified at appellant's jury trial. He stated that on December 21, 1999, he discovered that his 1988 Buick Century was missing. He reported the car stolen, and the police found the car on the same day. Mr. Guyton stated that he does not know Mr. Vick and did not give him permission to drive the car. Mr. Guyton also testified that one month before the theft he purchased the car for $6500.00.

Officer Doug Cunningham stated that he saw Mr. Vick driving the victim's car on the day at issue. He followed the car and eventually caught up with it, where it was parked at a pharmacy. Officer Ed Collins was called to give assistance, and upon arriving at the scene observed Mr. Vick near the stolen car with no other people in the immediate area. Officer Collins stated that although Mr. Vick was instructed to stop, he walked on into the pharmacy. The officers pursued him, conducted a search, and made an arrest. During the search, a wire hook was found in Mr. Vick's jacket. The vehicle's engine was still running, the steering column was broken, and a screwdriver was found on the driver's side floorboard.

Robert Cotton was working at the pharmacy when Mr. Vick pulled into the parking lot. He testified that the person driving the car was the same person that was arrested by the police.

Immediately following the criminal trial, a revocation hearing was held. At the hearing, Mr. Vick's probation officer testified that Mr. Vick failed to report as ordered and failed to pay probation fees.

In his brief, Mr. Vick's counsel correctly asserts that there could be no merit to a challenge to the sufficiency of the evidence to support appellant's conviction for Class B felony theft by receiving. Three witnesses gave testimony from which the jury could conclude that Mr. Vick was driving the stolen vehicle. Moreover, there was evidence that the property had a value of $2500.00 or more as required by Ark. Code Ann. § 5-36-106(e)(1) (Repl. 1997), given that the victim stated he bought the car for $6500.00 just a month before it was stolen. Although the preferred method of establishing market value is through expert testimony, the purchase price may be used to determine the market value when the purchase price is not too remote in time and bears a reasonable relation to the present value of the property. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). There was substantial evidence to support the jury's finding that Mr. Vick retained possession of property he knew to be stolen, and that its value was at least $2500.00.

There were six other adverse rulings at the criminal trial, and appellant's counsel has adequately addressed all of them. The first two occurred during jury voir dire, when appellant twice moved for a mistrial. On the first occasion the prosecutor asked a hypothetical question to a potential juror regarding whether the juror would consider the "track record" of an accused. However, a mistrial was not warranted because the trial court excused the juror, instructed the prosecutor to discontinue the offending discussion, and laterinstructed the jurors that remarks made by attorneys are not evidence. In the second instance, appellant moved for a mistrial when the prosecutor revealed to the jurors that appellant was being represented by a public defender. However, the trial court properly denied the motion because a mistrial is not warranted when the jury is informed that defense counsel are public defenders. See Landreth v. State, 331 Ark. 12, 960 S.W.2d 434 (1998). A mistrial is a drastic remedy for an error so prejudicial that justice cannot be served by continuing the trial and the error cannot be cured by an instruction to the jury. Howard v. State, 348 Ark. 471, 79 SW.3d 273 (2002). The trial court committed no error in denying both motions for mistrial.

The next adverse ruling occurred when, during cross-examination of Officer Cunningham, appellant's counsel repeatedly asked whether the victim's vehicle was tested for fingerprints, and the trial court asked appellant's counsel to "move along." Appellant's counsel correctly asserts that no error occurred because the officer had already answered "no" to the question being posed, and a trial court does not abuse its discretion in curtailing repetitive cross-examination. See Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).

The next two adverse rulings occurred during direct examination of Mr. Cotton. Appellant objected when the State asked Mr. Cotton why he approached appellant in the pharmacy parking lot, but the objection was properly overruled because the testimony was relevant to show that Mr. Cotton took special notice of the appellant. The other objection was made when appellant asserted that the State was leading the witness when asking whether the person he saw driving the car was the same person that was arrested. Theobjection was properly overruled because Mr. Cotton had previously given the desired testimony without objection. See Rockett v. State, 319 Ark. 335, 891 S.W.2d 366 (1995).

The only other adverse ruling that occurred during the criminal trial was when the appellant objected to the prosecutor's statement in closing argument that appellant had been identified by three individuals as the person driving the stolen car. The trial court responded, "Well, the jury will recall what the evidence was." No error occurred because the jury was instructed that remarks made in closing arguments were not evidence and should be disregarded if they have no basis in the evidence.

Appellant's counsel correctly asserts that there were only two adverse rulings made during the following revocation hearing. One adverse ruling was the revocation itself, and this decision was not clearly against the preponderance of the evidence in light of appellant's probation officer's testimony that appellant violated his conditions by failing to report and pay probation fees. The other adverse ruling occurred when appellant's counsel renewed all motions made during the jury trial. For the reasons previously stated, none of these motions had merit and none could support an appeal.

Based on our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 4-3(j)(1) and that the appeal is without merit. Appellant's counsel's motion to be relieved is granted and the judgments are affirmed.

Affirmed.

Pittman and Hart, JJ., agree.