Boen v. State
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Cite as 2010 Ark. App. 39
ARKANSAS COURT OF APPEALS
DIVISION III
No.
JEFFREY L. BOEN,
CACR08-588
APPELLANT
V.
STATE OF ARKANSAS,
APPELLEE
Opinion Delivered 13
JANUARY 2010
APPEAL FROM THE JOHNSON
COUNTY CIRCUIT COURT,
[NO. CR2006-102.A]
THE HONORABLE JAMES D.
KENNEDY, JUDGE
AFFIRMED; MOTION TO
WITHDRAW GRANTED
D.P. MARSHALL JR., Judge
The supreme court having granted a rule on the clerk, 374 Ark. 61, 285 S.W.3d
667 (2008), and our court having ordered rebriefing, 2009 Ark. App. 535, ___ S.W.3d
___, we can now decide this appeal. A jury convicted Jeffrey Boen of theft of property
and first-degree criminal mischief. Boen, who trades horses, livestock, and equipment
for a living, stole three cows and a red bull from a fenced-in pasture. The circuit court
sentenced Boen to fifteen years’ incarceration and a sixteen thousand dollar fine. His
lawyer has submitted a supplemented no-merit brief and again moved to withdraw
pursuant to Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court and
Court of Appeals Rule 4-3(k).
Cite as 2010 Ark. App. 39
Boen’s counsel addressed three rulings in his brief: (1) the circuit court’s denial
of Boen’s directed verdict motion; (2) the court’s sustaining the State’s objection to
part of Boen’s closing argument; and (3) the court’s setting Boen’s appeal bond at
$50,000.00 instead of the requested $10,000.00. In his pro se point for reversal, Boen
asserts that the court abused its discretion by disallowing his lawyer’s closing argument
about the toolmark of bolt cutters––a mark “almost as unique as a fingerprint.” On
this record, we agree with Boen’s lawyer: an appeal on the merits would be wholly
frivolous. Cf. Campbell v. State, 74 Ark. App. 277, 279–80, 47 S.W.3d 915, 917
(2001).
After the State’s case, Boen put on his defense. Boen failed to renew his motion
for a directed verdict at the close of all the evidence. Though he did move at the close
of the State’s evidence, the governing Rule required Boen to renew his motion to
preserve his sufficiency challenge. Ark. R. Crim. P. 33.1(a), (c). He thus waived
sufficiency.
The circuit court did not abuse its discretion in denying the attempt by Boen’s
lawyer to argue about the toolmark of bolt cutters. Closing arguments are confined
to the evidence introduced during trial and the reasonable inferences from that
evidence. Rohrbach v. State, 374 Ark. 271, 280, 287 S.W.3d 590, 597 (2008). During
his closing, Boen’s lawyer attempted to comment on the State’s failure to offer any
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Cite as 2010 Ark. App. 39
toolmark proof linking the cut fence to Boen. The State objected. No evidence about
toolmarks had been introduced during trial. It was no abuse of discretion, therefore,
for the court to sustain the State’s objection and limit Boen’s closing in this way. Ibid.
After sentencing, Boen asked the court to leave the $10,000.00 trial bond as the
appeal bond, but the court set a new $50,000.00 bond. We were not sure if this was
an adverse ruling within the meaning of our Rule and Anders because the point did not
go to Boen’s conviction, Ark. Sup. Ct. R. 4-3(k)(1), but we asked counsel to brief the
point. Further research has convinced us that our affirmance of Boen’s conviction
moots the appeal-bond issue. Walley v. State, 353 Ark. 586, 608–09, 112 S.W.3d 349,
362 (2003).
Affirmed; motion to withdraw granted.
VAUGHT, C.J., and GLOVER, J., agree.
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