Christopher D. Moffett v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CHRISTOPHER D. MOFFETT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-751

April 28, 2004

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. CR2002-0427]

HON. HAMILTON H. SINGLETON,

JUDGE

AFFIRMED

John Mauzy Pittman, Judge

The appellant in this criminal case was convicted of two counts of residential burglary, two counts of theft of property, and one count of felon in possession of a firearm for which he was sentenced to a total of forty-six years' imprisonment. For reversal, appellant contends that the trial court erred in failing to grant a mistrial when a witness stated that appellant was on parole for another offense, and in permitting a sheriff's department investigator to testify concerning the similarity of certain tires and tire tracks. In addition, appellant contends that there was insufficient evidence to support his conviction because accomplice testimony was uncorroborated. We affirm.

The State presented evidence that two homes were burglarized and that items were stolen from each, including several firearms. The State also presented testimony of appellant's accomplice detailing appellant's involvement in the crimes. After the State rested, appellant took the stand stating that he desired to tell the truth to the jury, and admitted to having previously been convicted of residential burglary, and to intentionally participating in the burglaries and thefts with which he was presently charged, including theft of firearms. Appellant's testimony included admissions that he and another person were driving around and needed money, so they entered and burglarized two houses, taking various items, including firearms, hoping that they could sell or pawn them for profit. He expressly stated that he was "telling the jury that [he] was guilty of each of these offenses." Despite his assertion to the contrary, appellant is not entitled to have the sufficiency of the evidence determined on the state of the evidence at the time that the State rested; he waived the right to rely on his initial directed-verdict motion by going forward with additional evidence after his initial motion was overruled. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994); Crawford v. State, 309 Ark. 54, 827 S.W.2d 134 (1992); Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992).

Arkansas Code Annotated § 16-89-111(e)(1) (Supp. 2003) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). Here, the fact that the crimes were committed was established by the homeowners' testimony. Appellant's own testimony was more than sufficient to connect him with their commission. We do not address the merits of appellant's remaining arguments because, even assuming that they are correct, appellant suffered no prejudice in light of his explicit judicial confession to all of the charges against him when he testified at trial. Barlow v. State, 28 Ark. App. 21, 770 S.W.2d 186 (1989); see Coon v. State, 76 Ark. App. 250, 65 S.W.3d 889 (2001).

Affirmed.

Robbins and Bird, JJ., agree.