Adam Kleier v. State of Arkansas

2019 Ark. App. 340

• Court: Court of Appeals of Arkansas
• Decided: August 28, 2019
• Status: Published

Opinion

Cite as 2019 Ark. App. 340 Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.07.21 13:55:17 DIVISION IV -05'00' No. CR-18-927 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: August 28, 2019 ADAM KLEIER APPELLANT APPEAL FROM THE PULASKI V. COUNTY CIRCUIT COURT, FIRST DIVISION STATE OF ARKANSAS [NO. 60CR-15-3339] APPELLEE HONORABLE LEON JOHNSON, JUDGE

AFFIRMED

RITA W. GRUBER, Chief Judge

On October 15, 2015, appellant Adam Kleier was charged in the Pulaski County

Circuit Court with Class A felony arson. The felony information alleged that appellant

started a fire on September 17, 2015, with the purpose of damaging a motel, which caused

damages greater than $10,000 but less than $100,000. The information also alleged that

appellant was a habitual offender having committed more than one but less than four

felonies. The State filed an amended information on October 16, 2017, which alleged that

appellant was a habitual offender with four or more prior felony convictions. Following an

April 2018 trial, a jury found appellant guilty of Class A felony arson and sentenced him as

a habitual offender with four or more prior felony convictions to serve forty-eight years’

imprisonment. For his sole point on appeal, appellant contends that the circuit court abused

its discretion in finding that the State’s exhibits 14 and 15 were documentary proof that appellant had Class C felony convictions from Missouri for offenses punishable by a sentence

of imprisonment in excess of one year as authorized by Missouri law. We affirm.

Arkansas Code Annotated section 5-4-502 provides that for habitual-offender

sentencing under Arkansas Code Annotated section 5-4-501, the circuit court shall hear

evidence of a defendant’s prior felony convictions, determine the number of convictions,

and instruct the jury as to the number of prior felony convictions along with the statutory

sentencing range. A conviction from another jurisdiction “constitutes a previous conviction

or finding of guilt of a felony if a sentence of death or of imprisonment for a term in excess

of one (1) year was authorized under a law of the other jurisdiction.” Ark. Code Ann. § 5-

4-503 (Repl. 2013). Proof of a foreign law is not a fact that must be proved at trial. See, e.g.,

Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998). Further, Arkansas Code Annotated

section 16-40-104 (Repl. 1999) provides that “[t]he courts of this state shall take judicial

knowledge of the laws of other states.”

The State bears the burden of proving a defendant’s prior convictions for purposes

of the habitual-offender statute. See Willliams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990).

A prior felony may be proved by any evidence that satisfies the circuit court beyond a

reasonable doubt that the defendant was convicted or found guilty of the prior felony. Ark.

Code Ann. 5-4-504(a) (Repl. 2013). A certified copy of the prior conviction is sufficient to

support a finding of a prior conviction. Ark. Code. Ann. § 5-4-504(b)(1).

During the sentencing phase, appellant’s counsel objected to the admission of State’s

exhibits 14 and 15—both certified copies of Class C felony convictions from Missouri—on

the basis that it could not be established from the exhibits themselves that the authorized

2 punishment range was in excess of one year. Exhibit 14 was a certified copy of a 1998

conviction for stealing a motor vehicle for which appellant was sentenced to twelve months’

incarceration in a county jail, and exhibit 15 was a certified copy of a 1998 conviction for

second-degree assault for which he was sentenced to eight months’ incarceration in a county

jail. The State responded that it provided the circuit court’s law clerk with “RS 558.011,”

a Missouri statute providing the ranges of punishment for the classes of felonies and that the

statute authorizes a sentence of up to seven years for a Class C felony. The circuit court

overruled the objection, admitted both exhibits, and instructed the jury that appellant had

been previously convicted of four or more felonies.

The argument appellant raises on appeal was addressed in Cherry v. State, 302 Ark.

462, 791 S.W.2d 354 (1990). Cherry, who was convicted of first-degree murder, argued on

appeal that a prior Missouri conviction should not have been used against him during

sentencing because “the record of conviction did not show it carried a sentence in excess of

one year, as required by Ark. Code Ann. § 5-4-503 (1987).” Id. at 470–71, 791 S.W.2d at

358. There, the State offered a certified copy of a conviction from Missouri to prove

appellant’s status as a habitual offender. The proof offered noted that appellant pleaded guilty

to “Forgery (Class C) (3 counts).” Id. at 471, 791 S.W.2d at 359. In affirming the circuit

court, the supreme court took judicial notice that under Missouri law, forgery is a Class C

felony and that a Class C felony is punishable by a term not to exceed seven years under

Mo. Ann. Stat. § 558.011(1)(3) (Vernon 1979). The supreme court held that the

convictions were properly considered.

3 The facts presented in this case, in contrast to Cherry, demonstrate that the Missouri

sentencing statute was cited by the State to the circuit court. The State cited Mo. Rev. Stat.

§ 558.011, told the court that a Class C felony authorized a sentence of up to seven years

imprisonment, and informed the court it had given a copy of the statute to the court’s law

clerk. 1 Appellant does not assert that Mo. Ann. Stat. § 558.011 does not authorize a sentence

in excess of one year for a Class C felony, only that the possible range of sentencing is not

apparent from the face of the certified copies of the convictions. The circuit court was

presented with the Missouri law and admitted the two Missouri convictions. Arkansas Code

Annotated section 16-40-104 provides that “[t]he courts of this state shall take judicial

knowledge of the laws of other states.” Therefore, we conclude that the challenged

convictions were properly admitted.

Appellant further contends that this court cannot take judicial notice of the Missouri

law on appeal, arguing that the supreme court in Greene v. State, 335 Ark. 1, 977 S.W.2d

192 (1998), “impliedly overruled” its holding in Cherry that it could take judicial notice of

the Missouri sentencing statute on appeal. Because the Missouri sentencing statute was raised

in the circuit court, we need not address this argument.

Finally, appellant suggests that the State failed to give proper notice that it intended

to rely on foreign law as required by Ark. R. Civ. P. 44.1. This argument was not raised

1 We note that the State included a copy of the Missouri statute in its supplemental addendum, which is not contained in the record. Rule 4-2(a)(8) of the Rules of the Supreme Court provides that the addendum is to include documents in the record on appeal. We will not consider a document that is included in the addendum but is not in the record. Barnett v. Monumental Gen. Ins. Co., 354 Ark. 692, 695, 128 S.W.3d 803, 805 (2003).

4 below, and we do not address arguments raised for the first time on appeal. Davis v. State,

2018 Ark. App. 450, at 4, 558 S.W.3d 897, 899.

Affirmed.

SWITZER and WHITEAKER, JJ., agree.

William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender,

for appellant.

Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for appellee.