Melvin Eugene Finley v. State of Arkansas

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ar03-737

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

MELVIN EUGENE FINLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-737

November 10, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SIXTH DIVISION [NO. CR 00-4277]

HON. TIMOTHY D. FOX,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

Melvin Eugene Finley was charged with the crimes of first-degree battery, committing a terroristic act, being a felon in possession of a firearm, and possession of a defaced firearm. After a jury trial, appellant was convicted of all of the charges and sentenced to consecutive terms of imprisonment totaling fifty-four years. On appeal, appellant contends that the trial court erred in denying his motion to dismiss for violation of his right to a speedy trial and, alternatively, in denying his motion for a directed verdict of acquittal on possession of a defaced firearm. We affirm.

Rules 28.1(c) and 28.2(a) of the Arkansas Rules of Criminal Procedure require the State to bring a defendant to trial within twelve months from the date the charge is filed in circuit court or, if prior to that date the defendant has been lawfully set at liberty pending trial, from the date of arrest. When the defendant has shown that a trial is or will be held outside the applicable speedy-trial period, the State must show that the delay was the result of the defendant's conduct or was otherwise justified. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). Delays resulting from continuances given at the request of the defendant are excluded from the speedy-trial period. Id. Moreover, a defendant may not complain belatedly when a timely objection could have averted error, and we will not reverse an order tolling the speedy-trial period in the absence of an objection giving the trial court the opportunity to rule on the exclusion of the time period. Id.

According to the trial court's docket, appellant was arrested on these charges on October 12, 2000, and was subsequently released on bond. His trial was eventually held on November 14, 2002, or approximately 763 days after his arrest. Because this period exceeded the twelve-month period allowed in Rule 28.1, the burden was on the State to demonstrate that the delay was properly attributable to appellant or was otherwise legally justifiable. Here, the State had the burden of showing that at least 398 days (the difference between 763 days and the allowable twelve-month speedy-trial period) were excluded from the speedy-trial period in order to show that appellant was timely brought to trial. See Standridge v. State, ___ Ark. ___, ___ S.W.3d ___ (April 29, 2004).

Appellant's appellate counsel concedes that the periods between April 24 and September 19, 2001, and between February 7 and June 10, 2002, were attributable to appellant. Those periods total 271 days. In addition, the record shows that at least two other delays were charged to appellant without objection: the 51-day period from June 10 to July 31, 2002; and the 105-day period from July 31 to November 13, 2002. In both instances, at the time that the delays were ordered, the trial court stated its understanding that the periods would be excluded from the speedy-trial calculation. Appellant's trial counsel expressly stated his agreement in one instance and his lack of objection in the other. Under these circumstances, appellant has waived any objection that he might have to either period of delay. See Dean v. State, 339 Ark. 105, 3 S.W.3d 328 (1999); Mack v. State, 321 Ark. 547, 905 S.W.2d 166 (1996) (the time to object is at the hearing where excludability is discussed and the trial court makes its ruling, not in a subsequent speedy-trial motion).

When we add these two excludable periods to the periods that appellant concedes were attributable to him, we arrive at a total of 427 excludable days, 29 more than the State was required to show in order to demonstrate that appellant was brought to trial within the applicable speedy-trial period. Therefore, we cannot conclude that the trial court erred in denying appellant's motion to dismiss.

Appellant next contends that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of possession of a defaced firearm. Specifically, he argues that the evidence is insufficient to support the finding that he had knowledge that the serial number had been removed from the firearm in question. We cannot agree.

Arkansas Code Annotated § 5-73-107(a) (Supp. 2003) provides that one commits the offense of possession of a defaced firearm "if he knowingly possesses a firearm with a manufacturer's serial number or other identifying mark required by law which has been removed, defaced, marred, altered, or destroyed." A person acts "knowingly" with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. Ark. Code Ann. § 5-2-202(2) (Repl. 1997).

Where the sufficiency of the evidence is challenged on appeal from a criminal conviction, this court views the evidence in the light most favorable to the State and will affirm if the finding of guilt is supported by substantial evidence. Ewings v. State, ___ Ark. App. ___, ___ S.W.3d ___ (March 24, 2004). Substantial evidence is that which is forceful enough to compel a conclusion one way or another and which goes beyond speculation or conjecture. Heritage v. State, 326 Ark. 839, 936 S.W.2d 499 (1996). A criminal defendant's state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). Circumstantial evidence alone may be sufficient to support a conviction. Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994). Whether circumstantial evidence excludes reasonable hypotheses other than guilt is left to the jury to determine. Stegall v. State, 340 Ark. 184, 8 S.W.3d 538 (1999).

Here, James Looney, a forensic ballistics examiner, testified that the firearm possessed by appellant had definitely been altered so as to remove the serial number; that the serial number was not present at all; that deep grooves were visible from the filing or grinding process used to remove the serial number; that the color of the firearm had been changed where the serial number was removed because the bluing had been ground off, leaving bare metal; and that the alterations were obvious. Appellant admitted having possessed the firearm for some time before the day of the incident. Under these circumstances, we cannot say that the evidence was insufficient to show that appellant knew that the serial number had been removed from the firearm.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.