Alglister Darnelle Moore v. State of Arkansas

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ar03-319

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

ALGLISTER DARNELLE MOORE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-319

January 21, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR02-1679]

HON. CHRIS PIAZZA,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Following a bench trial, the Pulaski County Circuit Court convicted Alglister Darnelle Moore of theft by receiving. He was sentenced as a habitual offender to serve five years' imprisonment. On appeal to this court, appellant argues that the trial court erred in overruling his objection to hearsay testimony regarding the value of the victim's car. We affirm.

Stephen Murphree testified that his 1991 BMW was stolen just before Christmas in 2001. He described his car as being in "pretty good shape." Murphree stated that he had bought the car in December 1999 for $6,200. Murphree began to testify as to what his insurance company had offered to pay him, and defense counsel objected on the basis that it was hearsay. The trial court ruled that the owner of a vehicle can testify as to "all the things that go into why he thinks that [his car]'s a [certain] value." Murphree then testified that his insurance company had offered him between $3,500 and $4,000 but that he thought his car was worth at least $4,500.

Anthony Ebokidi, a car dealer, testified that appellant attempted to sell him a 1991 BMW for $700. He stated that he became suspicious and began checking around because the price of the car was so low.

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Repl. 1997). Theft by receiving is a Class B felony if the value of the property is $2,500 or more. Ark. Code Ann. § 5-36-106(e)(1). The offense is a Class C felony if the value is less than $2,500 but more than $500. See Ark. Code Ann. § 5-36-106(e)(2)(A). "Value" means the market value of the property at the time and place of the offense or, if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. See Ark. Code Ann. § 5-36-101(11)(A) (Repl. 1997).

The State has the burden of proving the value of the property stolen, and the preferred method of establishing value is by expert testimony. Wright v. State, 80 Ark. App. 114, 91 S.W.3d 553 (2002). However, value may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. Id. The purchase price paid by the owner is a factor the jury may consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Jones v. State, 276 Ark. 116, 632 S.W.2d 414 (1982).

Appellant argues that Murphree's testimony about what his insurance company had offered him for the car was hearsay and that hearsay testimony cannot be used to prove value. He contends that the hearsay testimony was so persuasive that the trial court found that the market value of Murphree's car was $4,000. Appellant argues that he was prejudiced by the admission of the hearsay testimony in that he received an additional two years' imprisonment, which was the difference between the minimum sentences for a Class C felony and a Class B felony with his habitual status.

We agree that Murphree's testimony about what an insurance agent told him the car was worth was hearsay in that it was an assertion made out of court and offered to prove the value of Murphree's car. See Ark. R. Evid. 801. The State concedes that admission of the hearsay testimony to prove value was error but contends that it was harmless error.

It is well settled that an owner of property is competent to testify as to the value of his own property. Sullivan v. State, 32 Ark. App. 124, 798 S.W.2d 110 (1990). In Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), it was noted that there is a point at which we will hold that the testimony of the owner of property as to its value does not constitute substantial evidence of its value at the time of the theft. In Moore, supra, the victim testified that in 1985 she paid $3,600 for her 1980 Oldsmobile 98. She stated that her car was still worth what she paid for it and that she had spent "$150 something" to have the transmission repaired after it was stolen on July 15, 1988. No other evidence as to value was presented. The supreme court found that, although it was proper to admit the victim's opinion of her car's value, the evidence was insufficient to prove that its value was in excess of $2,500.

In Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996), the trial court erroneously admitted into evidence an invoice from a windshield-repair company addressed to the victim's insurance agent reflecting that it would charge $511.59 for its services. The supreme court found that the invoice was hearsay. Although the State tacitly recognized that the trial court's ruling admitting the invoice was erroneous, the State contended that it was harmless because the victim testified to the amount of his damages aside from the invoice, and as a result, the invoice was merely cumulative. The supreme court found that the record did not support the State's contention because the closest the victim came to testifying about the amount of his damages was when he stated that he did not file a claim with his insurance company because his policy provided for a $500 deductible. The supreme court noted that the victim would have made that statement if his damages were anywhere between $1.00 and $500. The case was reversed and remanded.

In the case at bar, Murphree testified that he paid well over $2,500 for the car just two years before it was stolen. He also testified, without objection, that he believed his car was worth at least $4,500. Further, Murphree stated that his BMW was in good condition. Under these circumstances, we cannot say that the trial court's finding that the car's value exceeded $2,500 was not supported by substantial evidence. We will not reverse where the evidence erroneously admitted was merely cumulative. See Eichelberger, supra.

Affirmed.

Stroud, C.J., and Hart, J., agree.