Timothy Ramon Moore v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I I

TIMOTHY RAMON MOORE,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-101

OCTOBER 8, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

SIXTH DIVISION

NO. CR2002-121,

HON. DAVID BOGARD, JUDGE

AFFIRMED

Sam Bird, Judge

Timothy Ramon Moore was convicted by a jury of breaking or entering and was sentenced as a habitual offender, with four prior felony convictions, to fifteen years' imprisonment. This sentence was the maximum punishment allowed for persons who commit the offense of breaking or entering, after having been convicted of four prior felonies. Moore argues on appeal that the State's proof of the four prior felonies was insufficient. We disagree and affirm.

At trial, during the sentencing phase, the State introduced evidence of Moore's prior convictions. The prosecutor stated that Moore had been convicted of four felonies and one misdemeanor. The felonies were theft of property in case No. 87-1551, residential burglary and theft of property in case No. 89-1190, and felon in possession of a firearm in case No. 93-51. The misdemeanor was theft by receiving in case No. 88-22.

Moore's main contention on appeal is that the two prior felony convictions in case No. 89-1190 for burglary and theft of property, arose out of the same incident and, therefore, should be counted only as one felony for habitual-offender sentencing purposes. Arkansas Code Annotated section 5-4-501 (e)(1) (Repl. 1997) states that:

For the purposes of determining whether a defendant has previously been convicted or found guilty of two (2) or more felonies, a conviction or finding of guilt of burglary and of the felony that was the object of the burglary shall be considered a single felony conviction or finding of guilt.

Moore argues that it is the State's burden to prove that the felony at issue, in this case theft of property, was not the object of the burglary at issue. See, e.g., Ellis v. State, 270 Ark. 243, 603 S.W.2d 891 (1980).

The State contends that the claim by Moore is either moot or barred because he did not raise this issue below. In regard to Moore's contention being moot, the State argues that at trial the prosecutor mistakenly called the charge of theft by receiving a misdemeanor, rather than a felony. Thus, the State argues that a decision on the merits of this case would have no practical legal effect because Moore still has four prior felony convictions. See, e.g., Shields v. State, 348 Ark. 7, 70 S.W.3d 392 (2002). The State also argues that any error is waived since there was no objection made to the trial court when the State presented the evidence regarding the four prior felonies. See, e.g., Rodgers v.State, 348 Ark. 106, 71 S.W.3d 579 (2002). We agree that if indeed there was error, it has been waived.

Our supreme court has stated that when a defendant fails to make an objection regarding the introduction of prior felony convictions for purposes of habitual-offender status, this issue is waived on appeal. Friar v. State, 313 Ark. 253, 257-58, 854 S.W.2d 318, 320-21 (1993). The Friar court explained this holding in some detail:

Further, in Evans v. State, 310 Ark. 397, 836 S.W.2d 384 (1992), a somewhat similar case, the appellant contended that one of his convictions should not have been considered for habitual offender purposes because it was pending on appeal. We noted that since the appellant raised this point for the first time on appeal, the court would not address it at all. Evans, supra. Nevertheless, Friar urges this court to consider his argument regardless of his failure to preserve it below, because it constitutes a trial error in which his "substantial rights" have been affected. In support of this argument, Friar cites A.R.E. 103(d) and Addington v. State, 2 Ark. App. 7, 616 S.W.2d 742 (1981). In Addington, the Arkansas Court of Appeals reversed a guilty verdict because the proof of prior convictions failed to indicate whether appellant had been represented by counsel. Relying on A.R.E. 103(d), the appeals court considered the argument without an objection below because it affected a substantial right of the party. In Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992), while we did not make reference to Addington, we effectively overruled its holding by stating:

The appellant misreads these rules. None of them absolves the party at trial from making the appropriate objection as a prerequisite to our review, and we have so held. See, e.g., Fretwell v. State, supra [289 Ark. 91, 708 S.W.2d 630 (1986) ]; Wicks v. State, supra, [270 Ark. 781, 606 S.W.2d 366 (1980) ]. . . . .

Friar v. State, 313 Ark. 253, 257-58, 854 S.W.2d 318, 320-21 (1993).

Additionally, this court has recently addressed this same issue. In Jones v. State, __ Ark. App. __, __ S.W.3d __ (October 1, 2003), the appellant argued that two of his prior convictions should have been considered one conviction for habitual sentencing purposes. In that decision we stated that an argument is not preserved for review when appellant fails to object to the proof of his habitual-offender status during his sentencing. Id. Moore concedes that he raises this issue for the first time on appeal. Therefore, we affirm.

Affirmed.

Gladwin and Robbins, JJ., agree.