Christopher Elliott v. State of Arkansas

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ar04-033

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CHRISTOPHER ELLIOTT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-33

SEPTEMBER 28, 2005

APPEAL FROM THE JACKSON COUNTY CIRCUIT COURT

[NO. CR2002-90]

HONORABLE HAROLD S. ERWIN, CIRCUIT JUDGE

AFFIRMED IN PART;

REVERSED AND DISMISSED IN PART

Karen R. Baker, Judge

Appellant, Christopher Lee Elliott, was charged with commercial burglary, breaking or entering, criminal mischief in the first degree, and theft of property. A jury in Jackson County Circuit Court convicted appellant of commercial burglary, breaking or entering, and theft of property and sentenced him to a total of thirty-six months in the Arkansas Department of Correction.

A directed-verdict motion was granted on the criminal mischief in the first-degree charge. However, the judgment and commitment order reflects that appellant was found guilty of the charge and sentenced to thirty-six months' imprisonment. Both appellant and appellee concede that the criminal mischief in the first-degree charge should not have been included in the judgment. Therefore, we reverse and dismiss appellant's conviction on the charge of criminal mischief in the first degree.

On appeal, appellant's only remaining argument is that the trial court erred when it denied his motion for a mistrial.

After closing arguments, the trial court instructed the jury on the charges against appellant and integrated lesser-included offenses on the commercial burglary and breaking or entering charges. The court stated that breaking or entering and criminal trespass were lesser-included offenses of commercial burglary and that criminal trespass was also a lesser-included offense for breaking or entering. The jury was provided verdict forms for the charged crimes and the lesser-included offenses.

Following deliberations, the jury returned to the courtroom with questions concerning the meaning of occupied structure. They were informed that their question was a question of law and that the court could not address it. After further deliberations the jury returned to the courtroom with their verdicts. However, they failed to return a verdict on the theft-of-property charge and found appellant guilty on the original charge of commercial burglary and its lesser-included offense of criminal trespass. The court informed the jury that there were inconsistent verdicts and explained that criminal trespass is a lesser-included offense of commercial burglary and breaking or entering. The court furthered explained to the jury that they had to decide between commercial burglary or its lesser-included offense of criminal trespass and between breaking or entering or its lesser-included offense of criminal trespass.

Once the jury retired to deliberation, appellant's counsel moved for a mistrial on the basis that the court instructed the jury that they had to come back with a guilty verdict as to the greater or lesser-included offenses and had not allowed for the possibility of outright acquittal. Following appellant's motion for mistrial the court had the jury returned to the courtroom in order to correct his previous instruction. The court specifically stated "disregard the last instruction that I or the last comment that I made that you're [supposed] to find two of three. You can still find him not guilty if you want to. You understand?" The court further stated, "I am not telling you to go find him guilty, I don't care what you do." The jury ultimately returned guilty verdicts on the three charges of commercial burglary, breaking or entering, and theft of property. This appeal followed.

A mistrial is a drastic remedy that should be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing the trial or where any possible prejudice cannot be removed by admonishing the jury or some other curative relief. Smith v. State, 85 Ark. App. 475, 157 S.W.3d 566 (2004) (citing Wilkins v. State, 324 Ark. 60, 918 S.W.2d 702 (1996)). The trial court has wide discretion in granting or denying a motion for mistrial, and such a decision will not be disturbed on appeal absent an abuse of that discretion. Id.

Appellant contends that the trial court erred in refusing to grant a mistrial. At trial, appellant moved for a mistrial because the judge instructed the jury to find appellant guilty on either commercial burglary or criminal trespass, not both. Additionally, appellant argued that the trial court erred in instructing the jury to find appellant guilty of either breaking or entering or criminal trespass.1 The trial court advised the jurors:

You've got a guilt of commercial burglary and criminal trespass. You've also got a guilt of breaking and entering. Now criminal trespass is a lesser-included of commercial burglary and breaking and entering. Y'all with me? So and criminal trespass is also a lesser-included of, of both of them. So you've got to tell me if you want the commercial burglary or the lesser included of criminal trespass of that one or the breaking and entering or the criminal trespass of that one. Criminal trespass tags on both of those, and if you want the criminal trespass, you need to knock out the higher one. Criminal trespass is a lesser included of both breaking and entering and commercial burglary. You got it, hadn't you? All right. You got to, you got to come back with two of these and not three.

After the jury retired to deliberations for a third time, appellant's attorney moved for a mistrial. He asserted that the trial court had instructed the jury to come back with convictions for one or the other offense and failed to include the option of not guilty. At that point the court requested the jury to return to the courtroom and addressed the jury as follows:

Now you're to disregard the last instruction that I or last comment that I made that you're [supposed] to find two of three. You can still find him not guilty if you want to. You understand? ... I'm not telling you to go find him guilty, I don't care what you do. That's up to you. You could find him guilty or not guilty on all the tops and all the lesser down or whatever you want to do. ... You got to bring me back, the three principals are commercial burglary, breaking and entering, and theft. Now if you want to go to a lesser included, you got to knock out the top one and take the lesser under it.

We believe that any error in the judge's earlier instruction was cured by this admonition, which in effect instructed the jury to disregard the previous remark and reach its own conclusion. Appellant has failed to show that the denial of his motion for a mistrial either constituted a manifest abuse of the trial court's discretionary authority or prejudiced the appellant. Stewart v. State, 320 Ark. 75, 894 S.W.2d 930 (1995).

Considering the context, the trial court's original remarks, and the admonition, we cannot say that the court abused its discretion in denying the motion for a mistrial. Affirmed in part; reversed and dismissed in part.

Bird and Roaf, JJ., agree.

1 Appellant's sole point on appeal is that the trial court erred in refusing to grant a mistrial. Although at trial he moved for a mistrial based on the trial court's instructions, on appeal he also argues for the first time that the trial court erred in failing to grant a mistrial due to the jury returning inconsistent verdicts. We do not address a appellant's argument that inconsistent verdicts required a mistrial because he failed to raise this argument below. It is well settled that we will not consider an argument raised for the first time on appeal. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004). In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Fouse v. State, 73 Ark. App. 134, 43 S.W.3d 158 (2001) (citing Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998)). We will not review a matter on which the trial court has not ruled; and, a ruling should not be presumed. Id.