Francis Walker v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

FRANCIS WALKER

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR03-134

JANUARY 28, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR02-2364]

HONORABLE DAVID BOGARD, CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

Appellant, Francis Walker, was convicted of first-degree criminal mischief in violation of Ark. Code Ann. § 5-38-203 (Repl. 1997) in a bench trial in Pulaski County Circuit Court. She was given five years' probation, a $250 fine, and ordered to pay restitution of $5,320. On appeal, appellant argues that the trial judge erred by ordering as a condition of probation that appellant indemnify the victim's insurance company for the amount paid to repair the victim's car. We affirm.

On Halloween night of 2001, appellant painted Robbie Washington's car and slashed one of the tires. The victim's car was repaired by Harold Gwatney Chevrolet. Steve Bayless, assistant manager of the body shop, testified that the total amount of damage to the vehicle was $5,320. The victim testified that she had paid a deductible of $500 and that her insurance company, State Farm Insurance, paid the remainder of the repair costs. At the conclusion of the trial, the court found appellant guilty of vandalizing the victim's vehicle and stated that the amount of restitution ordered would be $5,320 based on the testimony regarding the amount of damage done to the victim's vehicle. Following the trial judge's declaration of the amount of restitution owed, appellant's counsel made the following statement: "Judge, the restitution is $500, $506." However, there was no further discussion between appellant's counsel and the trial judge as to the specific amount of

restitution. The court stated that the probation office could apportion the money between the victim and the insurance company. This appeal followed.

Appellant argues that the trial judge erred by ordering as a condition of probation that appellant indemnify the victim's insurance company for the amount paid to repair the victim's car because State Farm Insurance Company was not an aggrieved party entitled to restitution under Ark. Code Ann. § 5-4-303(c)(8) (Repl. 1997). Section 5-4-303(c)(8) states: "If the court suspends imposition of sentence on a defendant or places him on probation, as a condition of its order, it may require that the defendant... make restitution or reparation to aggrieved parties, in an amount he can afford to pay, for the actual loss or damage caused by his offense..." However, appellant failed to make this argument below. We will not address arguments that have not been raised at trial. See Milton v. State, ___ Ark. App. ___, ___ S.W.3d ___ (September 3, 2003) (citing Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996)). In Milton, appellant's attorney informed the court, "I am relatively certain that I will appeal this," but he made no further objection or argument regarding the sentence. Milton argued for the first time on appeal that the trial court was not justified in ordering him to pay restitution because there was no evidence in the record of actual economic loss by the victim; however, this court found that the argument was not raised below, and parties are bound on appeal by the scope and nature of the objections and arguments presented at trial. Id. at ___, ___ S.W.3d at ____.

Here, appellant's counsel made the statement: "Judge, the restitution is $500, $506." No further discussion as to the amount of restitution occurred. Moreover, there was no objection as to the party receiving the restitution. Thus, because of appellant's failure to make this argument below, this court will not address his argument.

Affirmed.

Robbins and Roaf, JJ., agree.