Jones v. State

384 S.W.3d 22, 2011 Ark. App. 324, 2011 Ark. App. LEXIS 365
CourtCourt of Appeals of Arkansas
DecidedMay 4, 2011
DocketNo. CA CR 10-1041
StatusPublished
Cited by7 cases

This text of 384 S.W.3d 22 (Jones v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones v. State, 384 S.W.3d 22, 2011 Ark. App. 324, 2011 Ark. App. LEXIS 365 (Ark. Ct. App. 2011).

Opinion

ROBERT J. GLADWIN, Judge.

| Appellant Joe Jones appeals his conviction by a Pulaski County jury on a charge of commercial burglary, for which he was sentenced to thirty years’ imprisonment in the Arkansas Department of Correction. He argues that the circuit court abused its discretion in excluding, as hearsay, a comment made by him to police officers at the time of his apprehension. We affirm.

On December 14, 2009, appellant was charged by felony information with a single count of commercial burglary, with a sentencing enhancement provision for having been convicted previously of four or more felonies. The State requested a preliminary motion in limine to prohibit appellant from eliciting from the State’s witnesses his statement, made after his arrest, that he was trying to find a place to sleep because that statement was inadmissible 12hearsay. Appellant argued that the statement was admissible pursuant to one of two hearsay exceptions under the Arkansas Rules of Evidence (2010): Rule 803(3) as a statement of then existing mental, emotional or physical condition; or Rule 803(1) as a statement of his present-sense impression. Appellant relied on Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004), stating that a statement to show future action is admissible as an exception to the hearsay rule.

Appellant also cited Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979), stating that, although testimony is hearsay, if it is reliable and relevant to a defendant’s ease, it should be admitted into evidence under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The circuit court disagreed and granted the State’s motion in limine, finding that appellant’s spontaneous statement was an out-of-court statement lacking any indicia of reliability and that his word, as the declar-ant, would not be subject to cross-examination — as he was the defendant and was not required to testify.

A jury trial was held on May 27, 2010, at which time the State called three witnesses, two police officers and the owner of the affected business. Officers Cedrick Nelson and Stephanie Rector both testified that on November 15, 2009, they responded to a burglar alarm at 1901 Broadway, the Modern Woodmen of America business location. Noticing a broken window and a slightly opened back door, the officers announced themselves and walked into the back room, which was dark. Appellant stood up from behind a desk and was immediately arrested.

[aThe business owner, Albert Hurst, testified that he was notified by his alarm company that the silent alarm was triggered at the back of the office. He explained that the back room was being used for storage and was filled at that time with approximately $6000 worth of Christmas presents, including televisions, antiques, toys, and other items. He further described the room as very cramped with items stacked up to six-feet high and as having no real paths through it.

Mr. Hurst explained that he did a walk-through of the business with officers and initially failed to notice anything missing. After filing his report at the police department, Mr. Hurst returned to the business, at which time he found two flat-screen televisions out of place, and a black garbage bag containing a GPS, an electric screwdriver, and a portable power drill next to the televisions. He explained that he did not leave the televisions in the location he found them, nor did he store anything in garbage bags.

Following the close of the State’s case, appellant’s counsel moved for a directed verdict, arguing that there was no proof that appellant entered the premises “with the purpose of committing a felony.” The motion was denied.

Appellant took the stand in his own defense and acknowledged that he, in the past, had committed both residential and commercial burglaries. He admitted breaking windows to gain access to the back of the Modern Woodmen office. He claimed that he was looking for a place to rest and that he had dozed off but was awakened upon hearing the words “Little |4Rock Police Department.” Appellant testified that he had no intent to steal anything and that he would reimburse Mr. Hurst for the broken windows.

At the conclusion of his testimony, appellant renewed his motion for directed verdict, which was again denied. The jury returned a verdict of guilty to the charge of commercial burglary. The sentencing phase followed, with the jury recommending a fine of $5000 and a term of thirty years in the Arkansas Department of Correction. A judgment and commitment order was entered on July 8, 2010, and a notice of appeal was filed July 14, 2010. This appeal followed.

The decision to admit or exclude evidence is within the sound discretion of the circuit court, and this court will not reverse a circuit court’s decision regarding the admission of evidence absent a manifest abuse of discretion. Pace v. State, 2010 Ark. App. 491, 375 S.W.3d 751. An abuse of discretion is a high threshold that does not simply require error in the circuit court’s decision, but requires that the circuit court acted improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not reverse a circuit court’s evidentiary ruling absent a showing of prejudice. Harris v. State, 366 Ark. 190, 234 S.W.3d 273 (2006).

Appellant seeks reversal on grounds of prejudice resulting from an abuse of discretion, and on due-process grounds, rooted in the Fourteenth Amendment to the United States Constitution. Specifically, appellant argues that the circuit court’s limiting his cross-examination of the State’s witnesses was an abuse of discretion that prejudiced him by | ¿preventing jurors from hearing from the arresting officers the spontaneous statement regarding his intent. Appellant claims that he was deprived of his due-process right to a fair trial because he was unfairly limited in his examination of the witnesses against him.

Appellant was charged with commercial burglary. A person commits commercial burglary if he or she enters or remains unlawfully in a commercial oecupiable structure of another person with the purpose of committing in the commercial occu-piable structure any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(b)(1) (Repl.2006). To convict on this charge, then, the State must prove that appellant intended to commit a felony, and entered and unlawfully remained in a commercial oecupiable structure. According to the felony information, the intended felony in this case was theft of property.

The issue on appeal focuses on Arkansas Rule of Evidence 803, or the “hearsay exception” rule.

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Cite This Page — Counsel Stack

Bluebook (online)
384 S.W.3d 22, 2011 Ark. App. 324, 2011 Ark. App. LEXIS 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-state-arkctapp-2011.