Woods v. State

Allen Bruce WOODS, Jr. v. STATE of Arkansas

CR 95-798                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered March 4, 1996


1.   Appeal & error -- objection to physical evidence different
     from objection to opinion testimony -- defendant cannot change
     argument on appeal. -- Where appellant objected to the
     introduction of any physical evidence of shotgun blasts, which
     would encompass embedded pellets retrieved from the house and
     the like, but made no objection to a detective's giving his
     opinion on what made the holes in the victim's house, the
     issue concerning opinion testimony was not preserved for
     appeal; an objection to physical evidence is different from an
     objection to observations and opinions; a defendant cannot
     change his argument on appeal; the supreme court did not
     address the merits of the question.

2.   Criminal procedure -- sentencing -- departures from standards
     -- any defect in departure form should have been raised to
     trial court. -- Where appellant contended that the trial court
     erred in not following statutory procedure in departing from
     the sentencing grid in his sentence, the supreme court stated
     that any defect in the departure form should have first been
     raised to the trial court for consideration and possible
     correction; the departure form was in the record and, under
     Ark. Code Ann.  16-90-804(a)(3) (Supp. 1995), was required to
     be attached to the judgment and commitment form; the supreme
     court concluded that defense counsel had either received the
     form or easily could have availed himself of it and, hence,
     had ample time to broach any deficiency to the trial court.

3.   Criminal procedure -- sentencing -- departures from standards
     -- trial court circled numbers of apposite aggravating
     circumstances -- procedure was appropriate under statute. --
     Where Ark. Code Ann.  16-90-804(a)(3) requires that a copy of
     the written reasons for departure from the sentencing
     standards be attached to the commitment and that another copy
     be forwarded to the Arkansas Sentencing Commission, and where
     the trial court circled the numbers of the apposite
     aggravating circumstances rather than wrote out reasons for
     appellant's sentence enhancement, the supreme court concluded
     that the General Assembly did not intend by  16-90-804 that
     the trial court necessarily write out the reasons for
     departure in longhand but only that the reasons be written;
     where the reasons were in writing, and the trial court circled
     the numbers of those aggravating circumstances that comprised
     its justifications, the supreme court held that the procedure
     was appropriate under the statute and did not constitute
     error. 


     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     Christopher C. Mercer, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Robert L. Brown, Justice.
     *ADVREP5*
March 4, 1996






ALLEN BRUCE WOODS, JR.,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                     APPELLEE,

CR 95-798




APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CR 94-2604,
HON. JOHN LANGSTON, JUDGE,




AFFIRMED.



                Associate Justice Robert L. Brown


     This appeal is from a judgment of conviction on two counts of
aggravated assault.  Appellant Allen Bruce Woods urges two points
for reversal.  He first maintains that the trial court erred in
permitting a Little Rock Police Detective to testify that holes in
a house were made by shotgun blasts.  Secondly, he urges that the
trial court committed error in sentencing him because he gave no
written reasons for a substantial departure from the sentencing
grid, as required by State law.  Neither point has merit, and we
affirm the judgment.
     The facts in this case are garnered from the testimony of the
prosecution witnesses.  Lillie McMullan Scroggins testified that
she owns a two-story brick house on Fair Park Boulevard in Little
Rock.  On June 9, 1994, Tanyia McMullan, Lillie Scroggins's
daughter, and Tanyia's college friend, April Sherrill, were at the
house on Fair Park Boulevard.  Lillie Scroggins was on a cordless
telephone to Veronica McMullan, another daughter, when she observed
a blue Cadillac pull up in her yard with five males in the car. 
Woods, whom she had seen before, came to the door and asked for
Tanyia.  She told him that Tanyia was not there.  Woods returned to
the car which left.  Lillie Scroggins was still on the telephone
with Veronica McMullan, and she told Veronica McMullan that Woods
had come to the house.  Lillie Scroggins then called 911, and
Veronica McMullan came over to the house.  
     Lillie Scroggins further testified that Tanyia had returned to
her house and was outside talking when the blue Cadillac returned. 
Tanyia started running toward the house.  Lillie Scroggins saw
Woods get out of the back of the car, open the trunk, get a gun,
and put it together.  She testified that another youth had a bat in
his hand.  She described the gun as long and black.  As she was
running, Tanyia tripped on the steps to the house, and Veronica
McMullan and Lillie Scroggins pulled her into the house.  The
driver, who had the bat, began kicking the door.  The women pushed
a sofa behind the door, and he was unable to kick it open.  Lillie
Scroggins added that the boy with the bat hit the windows and that
she heard what sounded like a gun going off.  She did not see
anyone firing a gun.  Tanyia called 911, and, later, a police
officer arrived.  Lillie Scroggins testified that the windows and
screen in the dining room were broken, that the lining of the
drapes was torn, and that glass was everywhere in the house.  The
front door was also cracked, and the sofa was torn.  Woods was the
only person that she saw with a gun.  
     Veronica McMullan, Tanyia McMullan, and April Sherrill
basically confirmed Lillie Scroggins's rendition of what happened. 
Veronica McMullan added that she actually saw Woods firing the
shotgun at the house.  Tanyia testified that Woods had either
pointed the gun at her or the house.
     Woods was initially charged with one count of a terroristic
act and five counts of aggravated assault.  The State initially
nolle prossed one count of aggravated assault, and the trial court
directed a verdict on two others.  The terroristic act charge and
the aggravated assault charges with regard to Lillie Scroggins and
Tanyia McMullan went to the jury.  The jury found Woods guilty of
the two aggravated assault charges, which are Class D felonies, and
acquitted Woods of committing a terroristic act.  Following the
sentencing phase, the jurors could not arrive at a verdict, and the
jury was dismissed.  The State and defendant agreed that the trial
court would fix the sentence, and a presentence report was
requested.
     A sentencing hearing was held.  According to the sentencing
grid, Woods had a grade of level three for seriousness of the crime
and zero for criminal history.  Under the grid, commitment to a
regional punishment facility with alternative sanctions was
provided.  Despite this, the trial court sentenced him to six years
on each conviction and fined him $10,000 on each conviction, for a
total sentence of 12 years and $20,000.  Woods describes this
sentence as 2 1/2 times what the presumptive sentence was.  The
exact presumptive sentence alluded to is not provided by Woods. 
(The statutory penalty for a Class D felony is up to six years. 
Ark. Code Ann.  5-4-401 (Repl. 1993).)  On the day that the
judgment and commitment form was entered, the trial court filed a
standardized Departure Form and circled the numbers beside the
following two aggravating circumstances as reasons for enhancing
punishment more than 5 percent above the sentencing grid:
          2. Offender knew victim vulnerable due to extreme
     youth, advanced age, disability or ill health.
                              ....
          8. Offense was committed in a manner that exposed
     risk of injury to others.
     Woods first contends that it was reversible error under Ark.
R. Crim. P. 17.1 for the State not to disclose the anticipated
shotgun testimony by Detective Lawrence Welborn prior to trial. 
Woods had filed a motion for discovery and, in part, requested the
names, addresses, and the substance of their testimony.  The
response by the State had been that it has an "open file" policy. 
Detective Welborn's name was in the file, but defense counsel had
not talked to him.
     Prior to the detective's testimony at trial, defense counsel
objected to any "physical evidence" of the shotgun blast.  The
State answered that it had no physical evidence to introduce and
this colloquy ensued:
          THE COURT: All right, sir.  Is the State planning on
     producing any physical evidence that was not given to the
     Defense?
          STATE: No physical evidence, Your Honor.
          THE COURT: Okay.  You did give him the name of this
     witness in advance?
          STATE: Yes. sir, I did.
          THE COURT: What's your objection, sir?
          DEFENSE COUNSEL: Well, I'll probably cross examine
     him.  If he's going to testify to gunshot marks and
     things then it would just be his memory.  Do you have
     enough memory since you're not intending to produce any
     physical evidence?
          STATE: Your Honor, with all due respect, there is
     nothing in the police report about the gunshot bullet
     holes; however, because I spoke with this officer
     beforehand and discussed his observations with him, he
     told me that he did see them.
          THE COURT: Mr. Mercer, if you were given this
     witness' name in advance of trial, what he saw, heard and
     experienced most certainly is going to be admissible.
          DEFENSE COUNSEL: All right.
Direct examination of Detective Welborn by the State followed, and
he testified that he was trained at the State Police Academy on the
use of a shotgun.  He stated that he was trained on the size of the
barrel and the pattern a shotgun produces with different
ammunition.  He added that he was familiar with the type of hole
that a shotgun makes when fired and that he had seen the results of
over 100 shotgun blasts.  He opined that the holes at the McMullan
house were shotgun holes.  No objection was made to this testimony
by defense counsel.
     The State argues that an objection to Detective Welborn's
opinion testimony was not made and, thus, the issue was not
preserved for appeal.  We agree.  Defense counsel made his
objection on the basis of physical evidence of the shotgun blasts,
which would encompass embedded pellets retrieved from the house and
the like.  No objection was made to the detective's giving his
opinion of what made the holes in the house.  Indeed, defense
counsel stated that he would probably cross-examine the detective
about his memory concerning "gunshot marks and things."  An
objection to physical evidence is different from an objection to
observations and opinions.  We have held numerous times that a
defendant cannot change his argument on appeal. See, e.g., Spears
v. State, 321 Ark. 504, 905 S.W.2d 828 (1995); Smith v. State, 318
Ark. 142, 883 S.W.2d 837 (1994).  We, accordingly will not address
the merits of this point.
     Woods next contends that the trial court erred in not
following statutory procedure in departing from the sentencing grid
in his sentence.  The pertinent parts of the statute follow:
          (a)(1) Effective January 1, 1994, the trial court
     may deviate within a five percent (5%) range below or
     above the presumptive sentence without providing a
     written justification.
          (2)(A) For the trial court to depart beyond the five
     percent (5%) range below or above the presumptive
     sentence, written justification shall be given for the
     most serious offense if the sentences are run
     concurrently or on each offense if the sentences are run
     consecutively, specifying the reasons for such departure.
                              ....
          (3) A copy of the written reasons shall be attached
     to the commitment and another copy forwarded to the
     Arkansas Sentencing Commission.
                              ....
          (c)(1) When a sentence is imposed after January 1,
     1994, which is outside the presumptive range and which is
     not accompanied by written reasons for the departure, an
     offender shall be considered for any discretionary
     release applicable under the law as if he had received
     the presumptive sentence, and the transfer or releasing
     authority may review, grant, or deny transfer or release
     based on any eligibility established by the presumptive
     sentence term.
Ark. Code Ann.  16-90-804(a)(1), (a)(2)(A), (a)(3), and (c)(1)
(Supp. 1995).  Section 16-90-804(d)(2) continues with a list of
aggravating factors that might cause an upward departure from the
presumptive sentence, including the two circumstances cited by the
trial court in the instant case.
     We agree with the State's contention that any defect in the
Departure Form should have first been raised to the trial court for
consideration and possible correction.  The Departure Form is in
the record and according to  16-90-804(a)(3) was required to be
attached to the judgment and commitment form.  We have no doubt
that defense counsel had either received the form or easily could
have availed himself of it and, hence, had ample time to broach any
deficiency to the trial court.
     Nonetheless, we choose to address the merits of the issue
raised because of its importance to the bench and bar.  The trial
court in this case circled the numbers of the apposite  aggravating
circumstances rather than write out reasons for the enhancement. 
We conclude that the General Assembly did not intend by  16-90-804
that the trial court necessarily write out the reasons for
departure in longhand but only that the reasons be written.  Here,
they were in writing, and the trial court circled the numbers of
those aggravating circumstances that comprised its justifications. 
We hold that this procedure was appropriate under the statute and
did not constitute error.
     Affirmed.