Charles Avery Hull v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION IV

CHARLES AVERY HULL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-224

December 17, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 02-69]

HONORABLE CHRIS PIAZZA,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Charles Avery Hull, was charged with first-degree battery resulting from an incident wherein he struck Jessie Allen Cole Clay in the head with a baseball bat. After a bench trial, appellant was found guilty of second-degree battery. As an habitual offender with four prior felony convictions, appellant was sentenced to ten years in prison. His only argument on appeal is that the trial court erred by not specifically ruling that his prior convictions in 1987 and 1989 for burglary and theft of property were not admissible to impeach his testimony. We find no error and affirm.

Appellant testified at trial, explaining his perspective on the circumstances surrounding his assault of Mr. Clay. During the State's cross-examination of appellant, the following discourse took place:

PROSECUTRIX: Isn't it true that you're also a convicted felon?

APPELLANT: Yes.

PROSECUTRIX: What have you been convicted of?

APPELLANT: I've been convicted of possession with intent.

PROSECUTRIX: Is that it?

APPELLANT: Burglary and theft.

DEFENSE COUNSEL: Objection, Your honor. She's attempting to improperly

impeach him on - -

PROSECUTRIX: Can we approach?

THE COURT: She can ask him about, do you have, ask him about the specific

priors and then you can ask him, he can answer it.

PROSECUTRIX: He, the argument is over, he says that they're too old for me

to ask about, and he got off, he would have gotten off parole which as in -

DEFENSE COUNSEL: Well, his convictions are in eighty-eight and eighty-seven.

THE COURT: Well, I think, I don't know, I don't know, I believe it's decided

parole when you're released, but I always thought it was when you were

released from prison.

DEFENSE COUNSEL: I haven't seen.

THE COURT: Let's -

PROSECUTRIX: He's still under his parole.

THE COURT: Well, I don't know if that's the same thing as being released.

I'm not, the old rule was and the way it reads now still unless they change

their interpretation of it, it has to be in ten (10) years, releases him for

ten (10) years, and I always thought that was release from incarceration

and not parole, but -

PROSECUTRIX: Well, I'll just submit, I can submit those to you.

THE COURT: Yeah, okay, withdraw the question then.

PROSECUTRIX: Sure, he's already admitted to his current.

Appellant's argument on appeal is based on Rule 609 of the Arkansas Rules of Evidence and the supreme court's decisions in Hawksley v. State, 276 Ark. 504, 637 S.W.2d 573 (1982), and Jones v. State, 317 Ark. 587, 880 S.W.2d 522 (1994). Under Rule 609(b), a witness's credibility may be attacked with prior felony convictions, unless more than ten years has elapsed since the date of a conviction or the witness's release from confinement, whichever is the later date. In Hawksley and Jones, the supreme court held that, once an objection is made to the admissibility of prior convictions, the trial court has a duty to inquire as to whether the conviction is admissible under Rule 609. Appellant's argument here is that the trial court erred by not specifically ruling that his convictions for burglary and theft were stale and thus inadmissible under the rule. We find no merit to this argument. In our view, the record shows that the trial court conducted the required inquiry with the result that the question asking about the convictions for burglary and theft was withdrawn. Thus, those convictions were not used to impeach his testimony, and we perceive no basis upon which appellant can complain. Moreover, there is a presumption that a trial judge will consider only competent evidence, and this presumption is overcome only when there is an indication that the trial judge gave some consideration to the inadmissible evidence. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Although those convictions were later admitted at the sentencing phase of trial as proof to support the allegation that appellant was an habitual offender, the record clearly shows that the trial court did not consider those convictions for purposes of impeachment during the guilt stage of trial. Consequently, appellant has failed to overcome the presumption that the court only considered competent evidence.

Affirmed.

Robbins and Vaught, JJ., agree.