Steven Ellis v. State of Arkansas

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ar03-938

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

STEVEN ELLIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-938

May 26, 2004

APPEAL FROM THE CLARK COUNTY CIRCUIT COURT

[CR02-217]

HON. JOHN A. ALEXANDER, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant was convicted by a jury of residential burglary, theft of property, aggravated robbery, and first-degree terroristic threatening. He was sentenced to 120 months' imprisonment for burglary, 120 months' imprisonment for theft of property, 360 months' imprisonment for aggravated robbery, and 144 months' imprisonment for terroristic threatening. The sentences were to run consecutively. Appellant was found not guilty on a charge of second-degree battery. For his point on appeal, appellant contends that the trial court erred in allowing the State to argue in closing that prior convictions were proof that appellant committed the offenses he had been charged with and in failing to properly instruct the jury regarding use of prior convictions. We affirm.

Only a brief summary of the facts leading to the charges and convictions is necessary because the issues on appeal relate only to the State's use of prior convictions. Appellant did not move for a directed-verdict below, except as to the second-degree battery charge for which he was acquitted, and does not challenge the sufficiency of the evidence on appeal. The charges brought against appellant arose out his alleged participation in a November 20, 2002 residential burglary at Casey Owens's apartment in Arkadelphia. During the burglary, Owens was beaten with a handgun, bound with duct tape and electrical cords, and told by the assailants that he was going to be killed. The assailants searched the apartment and Owens's person for money and stole his vehicle.

In his opening brief, appellant argues that the trial court failed to properly instruct the jury regarding the use of prior convictions. Specifically, he states that the trial court erred in giving AMCI 203, which provides that "evidence that a witness has previously been convicted of a crime may be considered by you for the purpose of judging the credibility of the witness." Appellant argues that the trial court incorrectly omitted the final portion which provides "but not as evidence of guilt of the defendant." The State responds that the portion appellant contends was erroneously omitted was in brackets, which means that it can be omitted. Appellant acknowledges this error in his reply brief and concedes this issue. In addition, appellant failed to object below when the court reviewed the instructions with counsel, and when the instruction was read to the jury. Thus, his argument is not preserved.

The only issue remaining is whether the trial court erred in overruling appellant's objection during the State's closing argument. At trial, appellant testified in his defense, denying that he committed the crimes for which he was charged and asserting an alibi defense. During the State's cross-examination, appellant admitted that he had been previously convicted of theft of property, breaking or entering, and criminal mischief in the first degree. He also admitted that in the past he had "done a" breaking or entering, theft, battery, and criminal mischief. The State, during closing, made the following remarks:

Now what's the lesson that [appellant has] learned from this latest? Don't leave a witness. Next time he will pull the trigger. He is a convicted felon. He's done breaking and entering. He's charged with burglary now. He's done battery. He's charged with battery now. He's done theft. He's charged with theft now.

Appellant objected, contending that the State was arguing that the jury should find him guilty because he was guilty of the other crimes. The State responded that it was making the argument that appellant is a thief and he will do it again. At this point the appellant argued that the instructions prohibit the inference that because he was guilty before, he is also guilty this time. The State responded that the instruction goes to the credibility of a witness, and that it was permissible to argue" he's done it before, he'll do it again." The trial court overruled appellant's objection.

Parties are given great leeway in closing argument, and reversible error must show an abuse of discretion by the trial court in permitting that leeway. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). The supreme court has held that the trial court is given broad discretion to control counsel in closing arguments, and the appellate court does not interfere with that discretion absent a manifest abuse of it. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). Further, remarks made during closing arguments that require reversal are rare and require an appeal to the jurors' passions. Id.

In his opening brief, appellant argues that "once the State linked the prior convictions to the current offenses, it is imperative that the jury be properly instructed on this particular issue. That did not happen. For this reason, it was error for the Court to have overruled the appellant's objection to the State's argument, in light of the fact that the jury had not been properly instructed." After conceding that the instruction was proper in his reply brief, appellant argues that the instruction could not cure the subsequent argument because the bracketed portion was not given. In addition, appellant argues that the instructions were given before the closing argument.

In Thompson v. State, 21 Ark. App. 53, 727 S.W.2d 865 (1987), the appellant challenged his theft conviction on the basis that the prosecutor improperly referred to him as a habitual offender in closing argument. This court affirmed the conviction, stating that any impropriety was cured because the jury was instructed immediately before closing argument that the remarks of counsel were not evidence and that the prior convictions testified to were to be considered for credibility and not guilt or innocence. Thus, the instruction given prior to the closing was held to be adequate. The only distinction is that in the present case the phrase stating that the convictions not be considered as evidence of guilt or innocence was not included. However, as discussed above, this portion is optional under the AMCI and it was not requested by appellant. Appellant also suggests that nothing could have cured the improper statement once the objection was denied. However, appellant could have asked for an admonition to be given to the jury that the prior convictions were not to be considered as evidence of guilt or innocence. Appellant seemingly concedes that if the instruction had included the optional language, the State would likely prevail.

As stated previously, remarks made during closing arguments that require reversal are rare and require an appeal to the jurors' passions. While the prosecutor's statements were close to the line, we cannot say that the prosecutor's statement appealed to the jurors' passions. Here, appellant testified about his prior convictions. Prior to closing, the jury was instructed that closing arguments are not evidence and that evidence of prior convictions may be considered for the purpose of judging the credibility of a witness. Appellant never requested a mistrial or an admonition to the jury. We cannot say that the trial court abused its discretion in overruling appellant's objection.

Affirmed.

Bird and Crabtree, JJ., agree.