Kurtis Ray Easter v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

KURTIS RAY EASTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-793

April 27, 2005

APPEAL FROM THE IZARD

COUNTY CIRCUIT COURT

[CR-03-35]

HONORABLE TIMOTHY M.

WEAVER, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Kurtis Easter was convicted in a jury trial of filing a false report with a law enforcement agency. The jury also found that as a result of the filing of the false report, law enforcement expended over $500 to investigate the report, including the cost of labor; therefore, the offense was a Class D felony. Ark. Code Ann. § 5-54-122(c)(1)(B) (Repl. 1997). Because he had previously been convicted of more than four felonies, Easter's sentence was then enhanced under the habitual-offender statute, with the jury sentencing him to a term of ten years, to run consecutively to the sentences he was already serving. On appeal, Easter argues that the trial court erred in not granting his motion for directed verdict and that his sentence was illegal or void. We affirm.

In this case, appellant was an inmate of the Arkansas Department of Correction housed at the North Central Unit at Calico Rock. At trial, Investigator Tommy Cleveland of the Arkansas State Police testified that he first got involved in appellant's case

in November 2002 when Izard County Sheriff Joe Martz called and told Cleveland that appellant had mailed Martz numerous affidavits stating that appellant had been assaulted by fifteen inmates at the North Central Unit and that he wanted those inmates charged. In a letter to Investigator Cleveland dated November 2, 2002, appellant requested that Cleveland come see him and investigate the fifteen individuals. Appellant stated in that letter that he had filed affidavits against those fifteen individuals. Cleveland said that Sheriff Martz asked him to look at the affidavits, and he drove to Calico Rock from Mountain View to get them.

On May 20, 2003, Cleveland went to the North Central Unit and visited with then Warden Sarah McQuilliams and Captain Elmer Bolia regarding the arrest affidavits from appellant. McQuilliams and Bolia told Cleveland that they had looked into the allegations, that they had performed an internal investigation, and that there was nothing to the allegations. Then, on May 30, 2003, Cleveland met with appellant at the North Central Unit. After Cleveland read appellant his rights and appellant completed the waiver-of-rights form at 9:06 a.m., appellant gave Cleveland a statement. The statement, which was begun at 9:10 a.m. and was signed by appellant at 10:30 a.m., indicated that six of the inmates against whom appellant had filed affidavits had not in fact hit or assaulted appellant, that appellant could not remember what part two of the other named inmates had played in the incidents, and that the remaining inmates had hit him. Cleveland did not speak to any of the inmates against whom appellant had filed affidavits. Cleveland further testified that "[t]here were also telephone calls made to individuals during this time. A lot of phone calls." Cleveland stated that it took him a day or two to "do all of the reports and do the arrest affidavits" and that he then had to take that information to Batesville for a judge to sign and to file the arrest warrants against appellant for filing the false report. Cleveland testified that "this investigation, including my salary and mileage, I figured that up and it would have been over a thousand dollars."

Sarah McQuilliams testified that appellant had made some allegations in November 2002 and that she had made certain that those allegations were investigated. She said that she had been the official record keeper at that unit, and that she had never received any reports from inmates or employees that appellant had been beaten, threatened, or spit on, even though it was ADC policy that a form was required to be filled out by an officer any time there was an incident in a prison. McQuilliams stated that as a result of appellant's allegations, some of the inmates had to be transferred. She also said that appellant had to be transported from Tucker Max to the North Central Unit to be interviewed by Investigator Cleveland, and that it required two officers to transport appellant each way, which cost the ADC $400 in officer fees.

Captain Elmer Bolia, the criminal investigator at the North Central Unit, testified that appellant had a settlement in federal court against Correction Medical Services, a contract medical provider for prisoners in the State of Arkansas, and that part of the settlement agreement required that he be housed in the North Central Unit. Bolia stated that the court order requiring appellant to remain at the North Central Unit caused a lot of problems in housing and transfers when appellant began making his complaints because they could not transfer appellant out of the unit and had to transfer the inmates about whom appellant was complaining. He said that they would place appellant in a holding cell out of the general population, but that they did not have protective-custody cells at the unit. Bolia stated that they were able to have appellant transferred after filing amotion because by October 2002 they were no longer able to provide adequately for appellant's safety because he had made so many allegations against so many people.

At the close of the State's case, appellant moved for a directed verdict, stating, "We make a motion for a directed verdict on the basis that the State has not proven that he filed it with law enforcement. They haven't proven any of the elements including the fact that it was over $500 or if the money's expended." The trial court denied this motion.

Appellant contends that the trial court erred in denying his motion for directed verdict. When an appellant challenges the sufficiency of the evidence to support a conviction on appeal, this court's test is whether there is substantial evidence to support the verdict. Britt v. State, 83 Ark. App. 117, 118 S.W.3d 140 (2003). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. In determining whether the evidence is substantial, evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Id.

"A person commits the offense of filing a false report if he files a report with any law enforcement agency or prosecuting attorney's office of any alleged criminal wrongdoing on the part of another knowing that such report is false." Ark. Code Ann. § 5-54-122(b) (Repl. 1997). For the purpose of this statutory provision, "report" is defined as "any communication, either written or oral, sworn or unsworn." Ark. Code Ann. § 5-54-122(a) (Repl. 1997). Filing a false report is a Class D felony if "the agency or office to whom the report is made has expended in excess of five hundred dollars ($500) in order to investigate said report, including the costs of labor." Ark. Code Ann. § 5-54-122(c)(1)(B) (Repl. 1997).

Appellant first argues that a report was never filed with a law-enforcement agency. Specifically, he argues that the Arkansas Department of Correction is not a law-enforcement agency. However, we do not reach that issue because appellant also sent Investigator Tommy Cleveland of the Arkansas State Police a letter in November 2002, alleging that he had been assaulted by fifteen inmates and requesting that Cleveland look into the matter. This letter is a report under the definition set forth in Ark. Code Ann. § 5-54-122(a), and appellant does not contend that the Arkansas State Police is not a law-enforcement agency.

Appellant next argues that "the evidence was insufficient to establish that the various agencies expended $500 to investigate this matter." He contends that there is not a provision in the statute that allows various agencies to combine their expenses to reach $500 in order to enhance the penalty to a felony. However, the testimony of State Police Investigator Cleveland was that the State Police investigation alone cost over $1000, including his salary and mileage. Cleveland testified that he drove from Mountain View to Calico Rock and spent half a day with Sheriff Martz in November 2002; and in May 2003 he made two trips to the North Central Unit, one to meet with Warden McQuilliams and Captain Bolia, and a second to interview appellant, during which he obtained a statement from appellant. He also testified that there were "a lot" of phone calls made to different individuals, and that it took him a day or two to "do all of the reports and do the arrest affidavits" and then he had to take that information to Batesville for a judge to sign and to file the arrest warrants. Although the accounting could have been more detailed, we hold that, when viewing the evidence in the light most favorable to the State, there was sufficient evidence presented to support the State's contention that over $500 was expended on the investigation of appellant's false complaints. No evidence was offered to refute Investigator Cleveland's testimony, and the jury is free to believe all or part of a witness's testimony.

Appellant finally argues that his sentence must be set aside because it is illegal or void. Specifically, he argues that the State chose to seek the enhanced penalty of a Class D felony instead of a Class A misdemeanor and that therefore, the State cannot further enhance the penalty by sentencing him as a habitual offender. In support of this contention, appellant cites Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003), and Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Both cases are distinguishable from the present case.

In Banks, the appellant was convicted by a Pulaski County Circuit Court jury of third-degree domestic battering, second offense, a Class D felony. The maximum penalty for a Class D felony cannot exceed six years. Ark. Code Ann. § 5-4-401(a)(5) (Repl. 1997). However, appellant received an enhanced sentence of twelve years pursuant to the habitual-offender statute. In reversing, our supreme court, citing Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988), held that the appellant had received an illegal sentence because it was impermissible to stack a specific subsequent-offense-penalty enhancement statute upon the general habitual-criminal statute. Likewise, in Peterson, appellant was convicted of driving while intoxicated, fifth offense, and he was also sentenced as a habitual offender. This court held that appellant had received an illegal sentence and modified the sentence, citing Lawson v. State, supra.

Appellant's reliance on these cases is misplaced. Both Banks and Peterson involve stacking subsequent-offense-penalty enhancement statutes upon the general habitual- criminal statute. In the present case, the offense was increased to a felony only due to the amount of money expended upon investigation of the case, not because appellant had been previously convicted of filing false reports.

Affirmed.

Bird and Roaf, JJ., agree.