Hozie Ervin, Jr. v. State of Arkansas

ar05-557

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR05-557

February 1, 2006

HOZIE ERVIN, JR. AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR04-3609]

V. HON. JOHN LANGSTON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Hozie Ervin appeals from his conviction for theft by receiving a stolen vehicle and argues that the trial court erred in admitting into evidence a sales receipt purporting to establish the value of the stolen vehicle because the sales receipt was not admissible pursuant to the business-records exception to hearsay. We hold that the receipt was admissible and affirm appellant's conviction.

Appellant was charged with theft by receiving property valued in excess of $500 but less than $2500 pursuant to Ark. Code Ann. § 5-36-106(a) and (e)(2)(A)(Supp. 2005). On July 22, 2004, appellant was arrested after a police officer detected him driving a 1985 Chevrolet pickup truck that had recently been stolen from the used-car lot of Arkansas's Office of State Purchasing, Marketing, and Redistribution (Redistribution Office). The Redistribution Office, which received and sells State property, recovered the vehicle from impound and sold it at a public auction on August 12, 2004, for $802.

Appellant received a bench trial during which he objected when the Redistribution Office moved to introduce the sales receipt obtained by the State at the public auction as proof of the fair-market value of the vehicle. The State sought to introduce the sales receipt during the testimony of Frieda Fleming, the warehouse supervisor for the Redistribution Office. Fleming testified that it is her responsibility to supervise the sale of vehicles that are brought to her office, and that she is responsible for the facilities' files.

She further testified that she and her employees keep a daily inventory of vehicles on her office's lot and that there are normally thirty to fifty vehicles on the lot waiting to be sold. Fleming stated that the vehicle that was stolen in this case had been returned to her office to be sold. Through an inventory conducted after the gate to the lot was "busted," Fleming and her employees determined that the vehicle was missing. According to Fleming, her office was preparing to sell the stolen vehicle at the time it was returned to her office from impound. She described the auction process as normal for State vehicles.

Fleming also testified that she had direct knowledge of the fair market value of the stolen vehicle and that she knew the sales price of the vehicle was $802 because she was present at the auction when it was sold. Appellant objected that the fair-market value of the vehicle was a fact to be determined by the trial court. The court overruled the objection.

When the State thereafter moved to introduce the sales receipt, a voir dire examination of Fleming was conducted, during which she admitted that the sales receipt had been prepared by the accounting technician for the Redistribution Office. Appellant then raised the hearsay objection upon which this appeal is based in the following manner:

Defense: And, Your Honor, I would object to the admission of this form. That based on [sic] - that this witness is not the person with direct personal knowledge. This is not been subject to the business-record[s] exception.

Court: Why not, counsel?

Defense: Because she is not the person who's responsible for making the form.

Court: Does a business-record[s] exception only go to persons who are responsible for making the form?

Defense: Your Honor, I would argue that without - it is not self-authenticating, and there's not been a proper foundation with which to receive this into evidence.

Court: [Does the] State wish to respond?

State: Judge, she says she's responsible for those files, and not only that, she's got personal knowledge. She was there at the auction when the car was sold some two to three weeks later. This is a bill of sale brought to [Court] by [her] from her business that I think is sufficient to be introduced into evidence.

The trial court overruled appellant's objection and admitted the bill of sale, which shows that the vehicle stolen in this case (identified by the vehicle-identification number) was sold at the auction for $802.

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter." Ark. R. Evid. 801. Hearsay is inadmissible except as provided by the exceptions set forth in Arkansas Rule of Evidence 803. Howard v. State, 348 Ark. 471, 79 S.W.3d 273 (2002). Rule 803(6) provides that records of regularly conducted business activity are admissible as follows:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ...

We do not reverse a trial court's ruling regarding a hearsay issue unless the trial court abused its discretion. Peterson v. State, 349 Ark. 195, 76 S.W.3d 845 (2002).

We affirm, first, because appellant attempts to change his argument on appeal. While he did argue below that the bill of sale was not admissible pursuant to the business-records exception found in Rule 803(6), he objected only on the ground that Fleming had no personal knowledge of the document because she was not the person who prepared the document.

Appellant now argues that the trial court erred in admitting the document under the same rule, but on the different ground that the State failed to prove that the sales receipt was a business record or public record made in the regular practice of the Redistribution Office. Clearly, the trial court was not apprised that appellant objected to the admission of the sales receipt on this ground. It is well-settled that a party cannot change the nature and scope of his argument on appeal, but is bound on appeal by the scope and nature of the objections and arguments presented at trial. Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). Accordingly, because appellant did not raise this argument below, we affirm.

We also affirm because appellant was simply wrong in arguing below that the State was required to prove that Fleming prepared or had actual knowledge of the creation of the sales receipt. The personal knowledge of the sponsoring witness regarding the preparation of the document goes to the weight of the evidence, rather than its admissibility. Metzgar v. Rodgers, 83 Ark. App. 354, 128 S.W.3d 5 (2003). Here, Fleming testified that her office sells State property; that she supervises the sale of the State's vehicles; that at any given time, her office has thirty to fifty cars awaiting sale; that she is responsible for the office's files concerning the vehicles that are sold; that the accounting technician in her office prepares the sales receipts; that the accounting technician prepared the sales receipt that is at issue here and gave it to her to bring to court; and that she was present when the vehicle in this case was sold.

Therefore, the bill of sale was properly admitted under the business-records exception to hearsay because the bill of sale was 1) a record of, 2) an act (the sale of the vehicle), 3) made at or near the time the act occurred (the day of the sale), 4) by a person with knowledge (the accounting technician), 5) kept in the course of regularly conducted business (one purpose of the Redistribution Office is to sell State vehicles), 6) that has a regular practice of recording such information (preparing sales receipts for vehicles sold at auctions), (7) as demonstrated by a qualified witness (Fleming, who personally supervises the sale of State vehicles, who identified the State employee who prepared the sales receipt, and who was present when the vehicle in this case was sold). See Hooper v. State, 311 Ark. 154, 842 S.W.2d 850 (1992).

Finally, we affirm because appellant cannot demonstrate that he was prejudiced by the trial court's ruling. He asserts that the trial court's ruling prejudiced him because the sales receipt was the "only" evidence that "precisely" established the value of the stolen vehicle. However, before the bill of sale was offered into evidence Fleming testified that she was present at the auction and that the vehicle sold for $802 at the auction. Therefore, appellant suffered no prejudice because he was not convicted merely on the basis of erroneously admitted hearsay evidence.

Affirmed.

Vaught and Baker, JJ., agree.