Troy Wayne Love v. State of Arkansas

ar04-247

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

TROY WAYNE LOVE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-247

February 2, 2005

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT

[NO. CR2003-159-2]

HON. JIM HUDSON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Miller County jury found Troy Wayne Love guilty of theft of property, a Class B felony, and filing a false report with a law-enforcement agency, a Class D felony. He was sentenced to thirty-five years' and ten years' imprisonment, respectively, with those sentences running consecutively. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's attorney has filed a motion to withdraw, alleging that there is no merit to this appeal. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was provided with a copy of his counsel's brief and was informed of his right to file a list of points for reversal within thirty days. Appellant chose to file pro se points for reversal, to which the State has responded. We affirm.

Testimony

Steve Carpenter, an employee at Riggs Rental, testified that appellant rented a welder on February 7, 2003, which was a Friday. Carpenter stated that, although the welder was supposed to be returned the following Monday, appellant did not return it. According to the rental agreement, appellant claimed the welder was to be used at 2018 Hickory Street in Nash, Texas. Carpenter stated that, pursuant to standard operating procedure, he went to the address provided in search of the welder. Carpenter found Hickory Street but did not find the address and did not see any welding being done anywhere on the street. Carpenter testified that on Wednesday, appellant called Riggs to alert them that the welder had been stolen and that he had filed a police report. Carpenter confirmed that a report had indeed been filed and then called appellant to settle up on the insurance requirements. Although he agreed to meet Carpenter, appellant did not show up. Carpenter requested that the police continue searching for the welder. According to Carpenter's testimony, appellant had asked questions that Carpenter considered odd or unusual such as what the welder was worth.

Chris Rucks testified that he lived at 140 Hickory Street in Nash, Texas, and that some work had been done on the one-hundred block of Hickory Street in February of 2003. He testified, however, that the work did not involve welding. According to Rucks, the address of 2018 Hickory Street did not exist. Rucks further stated that he did not know appellant, could not identify him in the courtroom, and was certain he was not among the workers.

Mike Cook, the rental coordinator at Riggs, testified that he spoke with appellant on the telephone and was told on Monday that he was unable to bring the welder back on that day but that he was hoping to bring it back on Tuesday. On Tuesday, Cook spoke with appellant again. Appellant told him that he could not return the welder but rejected Cook's offer to pick up the welder. Appellant assured Cook that he would have the welder back Wednesday morning and inquired as to what time Riggs opened its doors for business. Cook spoke to appellant on Wednesday morning and was told that the welder had been stolen. Cook testified that the trailer-mounted welder was new and had cost approximately $8,000.

Raymond Maxted, who lived at 2318 Hickory in Texarkana, had hired appellant to pour a driveway. He recalled that on February 12, when he was finishing the concrete work, appellant stated that some equipment had been stolen from him but did not mention a welder. Maxted stated that he did not see a welder when appellant worked at his residence and that appellant would not have needed a welder for the job.

Jimmy Nicholas, a former investigator for the Miller County Sheriff's Office, testified that he had known appellant for many years and that he had taken a statement from appellant in December 1997 that involved the theft of a generator and a welder. According to Nicholas, appellant told him that on five or six occasions he had rented welders and generators and then sold them without the owner's permission.

Officer Bobby Jordan with the Texarkana Arkansas Police Department testified that on Wednesday, February 12, 2001, appellant reported that a welder had been stolen from in front of a residence on Hickory Street where he was working. Officer Jordan stated that he had some doubts about the legitimacy of appellant's report because of prior experience with appellant involving the theft of welders. According to the officer, appellant initially told investigators that he used the welder to weld some rebar together on a carport and to weld on a trailer. Officer Jordan testified that appellant later gave several different stories about what he had done with the welder and when. Officer Jordan further testified that the police officers had spent a significant amount of time on the investigation of appellant's report and estimated that the hours invested would amount to $500 worth of work.

After the State rested its case, appellant's counsel stated, "I move for a directed verdict of acquittal on both counts." The State argued that the motion should be denied, and appellant's counsel stated, "Nothing further." The trial court denied the motion.

Appellant took the stand on his own behalf. Appellant testified that Officer Jordan got confused about what he had said regarding the use of the welder. Appellant stated that when the officers interviewed him about the welder he reported stolen, they yelled at him and called him a thief and a liar. He also testified that the officers asked him to take a lie detector test. On cross examination, appellant said that the officers had offered to give him a polygraph and that he had refused. On redirect, appellant explained that he had a medical reason for not taking the test in that the test would be inaccurate because one part of his heart beats a split second faster than the other part due to an injury. Appellant said that another reason he would not take the test was because he did not think the officers would give the test because they kept badgering him for answers.

Defense Counsel's Discussion of Adverse Rulings

Exclusion of Witnesses

The State requested that Carpenter be allowed to stay in the courtroom pursuant to Ark. R. Evid. 615 and 616, arguing that the rental agency, as the "victim" of the crime had a right to be present in the courtroom. Defense counsel points out that, although it was argued that the State's request came too late, there was no discussion regarding the exclusion of witnesses the day before trial. The trial court ruled that a corporate entity was one kind of victim contemplated by the rules and that there would be virtually no harm in allowing Carpenter to stay because the State was calling him as its first witness. Counsel argues thatthe ruling would not warrant reversal because appellant did not and could not show that any prejudice resulted.

Rental Agreement

The State asked Carpenter if appellant signed the rental agreement. Counsel objected after misinterpreting the State's question. Counsel thought the question was also asking the witness whether appellant had prepared the rental agreement. The trial court overruled the objection. Defense counsel argues that prejudice cannot be demonstrated by a "rather innocuous remark" by the witness.

Introduction of Rental Agreement

Defense counsel objected to the introduction of the rental agreement because after "Expected Return Date:," "99/99/99" appears. Counsel argued that the time for return had not yet occurred. The witness explained that the 99/99/99 entry was the computer default and that the length of the rental could be shown by the amount charged, which was on the second page of the rental agreement. The trial court overruled the objection, stating that the default date would go to the weight of the evidence and not to its admissibility. Counsel argues that no prejudice resulted from the ruling.

Leading a Witness

Chris Rucks was called by the State to show that appellant had lied to investigators about concrete work he claimed to have done for Rucks. Defense counsel objected during Rucks's testimony, arguing that the State was leading the witness. The court overruled the objection. Defense counsel argues that the questions were, in fact, direct and not leading.

Motion to Strike Testimony

Defense counsel asked the court to strike all of Rucks's testimony because Rucks did not even recognize appellant and had no relation to him. The trial court refused to strike the testimony. Counsel argues that appellant failed to argue the point and did not attempt to show how prejudice had resulted.

Directed-Verdict Motion

Appellant moved for a directed verdict on both charges, and the trial court denied the motion. When asked by the court, appellant did not follow up the motion with specific grounds and, instead, replied, "Nothing further." Counsel argues that he cannot challenge the sufficiency of the evidence because he made no argument below that would have preserved the issue. See Ark. R. Crim. P. 33.1.

Volunteering Testimony

On direct examination, appellant began volunteering testimony, and the State objected. Counsel did not respond but was told by the court to proceed with questions and answers. The objection and ruling was not challenged. Counsel argues that this was not a meritorious ground for reversal.

Polygraph Examination

During appellant's testimony on direct about his contacts with the investigators, appellant mentioned that they had asked him if he would take a lie-detector test. On cross-examination by the State, appellant stated that he was offered a polygraph and that he refused to take one. Defense counsel objected. The State argued that appellant had already brought up the polygraph on direct, and the court agreed to let the State use the remark for impeachment purposes. On redirect, appellant explained that his medical condition would "throw off" a polygraph. Appellant further testified that the investigators were not qualified to administer a polygraph. Defense counsel sought an instruction by the court regarding the reference to a polygraph. The trial court stated that it was clear to the jury that no polygraph was given and that the matter should be left alone. With that said, the trial court drafted a proposed instruction and then decided not to give it. Instead, the court asked appellant if he wanted to propose an instruction, and appellant did not. Defense counsel argues that reference to a polygraph is not necessarily prejudicial and that there was no prejudice here because there was no testimony that appellant actually took the test and failed. See Wingfield v. State, 303 Ark. 291, 796 S.W.2d 574 (1990). In addition, counsel contends that appellant failed to proffer a limiting instruction. As a result, counsel believes this is not a meritorious ground for reversal.

Testifying in Narrative Manner

Appellant began testifying in a narrative form, to which the State objected. The court instructed appellant to only respond to the questions that were asked. Defense counsel said nothing. Counsel argues that prejudice cannot be shown without any response from defense counsel.

Prior Convictions - Rule 404(b)

The State had filed a motion prior to trial, asking to introduce appellant's prior convictions and statements through testimony by the investigators. The State wanted to show that appellant had the motive, plan, or intent to rent and sell the welder in question. Appellant objected to the State's motion, arguing that it should be limited to introduction of the certified copies of the judgments and not be allowed to use live testimony. Appellant did not dispute the prior convictions. The trial judge asked the State whether there was any other evidence to prove motive, plan, or intent that would be less prejudicial to appellant, and the prosecutor replied that there was none. After the trial court balanced the relevance versus the unfair prejudice, the court noted that a limiting instruction was needed. Appellant agreed that the instruction should be given. Defense counsel argues that, because appellant had no objection to introduction of the three pen packs that detailed his prior convictions on similar crimes, there was likely no prejudice from the investigators' testimony. In any event, counsel points out that appellant testified that his statement in 1997 involving the renting and selling of a welder was the truth.

Renewed Motion for Directed Verdict

The trial court denied appellant's renewed motion for a directed verdict. Counsel points out that appellant offered no argument when he moved for a directed verdict. In any event, counsel argues that even though the evidence was circumstantial, it was possible that the jury did not believe appellant, whose testimony conflicted with that of the other witnesses. As such, there was substantial evidence to support his conviction for theft of property. Counsel points out that, because the jury could have reasonably concluded that appellant committed theft of property, the jury could also conclude that appellant's report to the police was false.

Appellant's Pro Se Points for Reversal

On April 28, 2004, appellant filed his points for reversal and listed them as follows:

(1) Argument regarding the introduction of prior convictions of appellant and the court's ruling;

(2) The trial court judge should not have allow[ed] the testimony of Jimmy Nicholas before I got on the stand to testified [sic];

(3) There was [sic] no statements from the appellant to Bobby Jordan[.] This is hearsay evidence. There [were] no written or record[ed] statements;

(4) This case has numerous inconsistencies and errors of fact from what the transcript read. The appeal attorney Mr. McGough has fail[ed] to show the true evidence in this abstract and should be place[d] back with the attorney.

(5) This case was decided on circumstantial evidence which the testimonies revealed numerous inconsistencies and errors of fact by two witnesses Bobby Jordan and Chris Rucks[.] My trial attorney Mr. Tilmon fail[ed] to cross examination [sic] the witness in a true professional way.

(6) The only motion file[d] on my behalf was the Motion of Discovery;

(7) When my attorney made his motion for a directed verdict, he offered no argument. For these reasons the denial of the motion for Directed Verdict.

(8) (Grounds for relief) Actual or Construction [sic] denial of counsel.

On July 8, 2004, appellant filed a "Pro Se Motion to Supplement Points for Reversal," in which he moved to add one point: He was not sentenced as a habitual offender. Appellant listed several sub-points as follows:

(A.) The prosecutor attorney did not mention it to the jury about habitual offender.

(B.) The Judge did tell the jury that I was habitual offender.

(C.) But when he sentence[d] me he did not tell me I was sentence[d] as an habitual offender.

(D.) It['s] not on my Judgment and Commitment Order.

(E.) I'm only doing 1/3 of my sentence.

(F.) I feel like this is an illegal sentence.

State's Response to Appellant's Points on Appeal

The State contends that appellant's points for reversal are, for the most part, incomprehensible; he merely makes conclusory statements without citation to authority; and he does not refer to specific portions of the record. See Satterlee v. State, 289 Ark. 450, 711 S.W.2d 827 (1986). Nevertheless, the State argues that appellant's points do not warrant reversal. First, the State maintains that, to the extent appellant is challenging the sufficiency of the evidence, his arguments are barred because his motion was not specific as to how the evidence was deficient. See Ark. R. Crim. P. 33.1; see also Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). Second, the State argues that appellant cannot raise a claim of ineffective assistance of counsel on direct appeal when the trial court has not considered it. See Whitney v. State, 326 Ark. 206, 930 S.W.2d 343 (1996). Finally, regarding his supplemental point concerning his sentencing, the State argues that appellant was sentenced without objection. However, because appellant is challenging the legality of his sentence, it can be raised for the first time on appeal. See Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). The State alleged in its information that appellant was a habitual offender convicted of more than four felonies and was subject to a term of imprisonment not exceeding fifteen years on the false-report charge and a term of imprisonment of not less than five nor more than forty years on the theft-of-property charge. At the sentencing phase, the State provided evidence that appellant had been convicted of nineteen previous felonies. The jury recommended that appellant receive ten years on the false-report conviction and thirty-five years on the theft conviction. The trial court accepted the jury's recommendation and ordered that the sentences be served consecutively. A judgment-and-commitment order and an amended order were filed on December 19, 2003, and January 7, 2004, respectively. However, the judgments incorrectly stated that appellant was sentenced to a total of thirty-five years. On January 14, 2004, a second amended order was filed that reflected that appellant was sentenced to forty-five years' imprisonment. None of the judgments provides under which provision of the habitual-offender statute that appellant was sentenced. The State points out that appellant does not challenge the court's authority to order consecutive sentences and does not challenge the entry of the amended judgments or the clerical error on all of them. The State argues that appellant was on notice that he was regarded as a habitual offender and that the sentences reflect that he was sentenced as a habitual offender.

Based on our review of the record, along with defense counsel's brief and appellant's pro se points for reversal, we conclude that there has been full compliance with Rule 4-3(j)(1) and that the appeal is without merit. Defense counsel's motion to be relieved is granted, and appellant's convictions are affirmed.

Affirmed.

Hart and Baker, JJ., agree.