Tomboli v. State

268 S.W.3d 918, 100 Ark. App. 355, 2007 Ark. App. LEXIS 814
CourtCourt of Appeals of Arkansas
DecidedNovember 28, 2007
DocketCA CR 07-441
StatusPublished
Cited by9 cases

This text of 268 S.W.3d 918 (Tomboli 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
Tomboli v. State, 268 S.W.3d 918, 100 Ark. App. 355, 2007 Ark. App. LEXIS 814 (Ark. Ct. App. 2007).

Opinions

Wendell L. Griffen, Judge.

A Lonoke County jury found Richard Tomboli guilty of theft by receiving and sentenced him to a thirty-year term in the Arkansas Department of Correction. He appeals from the conviction, asserting that the State presented insufficient evidence to show that he possessed the stolen vehicle in question. He also alleges that the trial court erred in allowing victims of other thefts to testify about those thefts and in not allowing him to cross-examine a witness regarding a third party who was also accused of theft by receiving. We affirm, holding (1) that the State presented sufficient evidence that appellant was in possession of the stolen vehicle; (2) that, while the court erroneously permitted evidence of other thefts, the error was harmless; and (3) that the trial court properly excluded questions regarding thefts committed by a third party absent a connection to the present case.

Factual and Procedural History

Appellant was charged with felony theft by receiving and fleeing.1 Evidence presented at trial shows that in September 2005, Dale Lamb’s white 2004 Dodge Ram truck was stolen from his fiance’s residence. Police recovered a white 2004 Dodge Ram in November 2005. The truck recovered by police appeared to be Lamb’s truck, though a pinstripe and a Razorback decal had been added. Lamb’s insurance company paid on a theft claim, and insurance records show that the VIN number of Lamb’s truck was 1D7HA16D14J171118.

The truck was recovered on the afternoon of November 20, 2005, by Deputy Steve Benton of the Lonoke County Sheriffs Office. He initiated a traffic stop after seeing a white Dodge Ram passing on a double-yellow line. The truck stopped on Pickthorne Road, but as Benton exited his patrol car and started toward the truck, the truck drove off. When the truck left, Benton returned to his patrol car and pursued the truck. The truck later turned into a hayfield, and Benton lost sight of it. However, he later discovered the truck abandoned in the field. Benton checked the VIN number of the truck, 1D7HA16D14J171118, and discovered that the truck was stolen. He found several items in the field close to or inside the truck, including a claw hammer, a shoe, a hand saw, some business checks, a plastic wedge, a “slim jim” (used for unlocking cars), a stun gun, a small can of mace, flashlights, a radio antenna adaptor, bolt cutters, and a handsaw. Several items were fingerprinted, and a print belonging to appellant was found on one of the checks. In addition, during the chase, Benton saw the driver throw a black bag out of the truck. Police later recovered the bag, and it contained an assortment of keys and key rings. Benton identified appellant as the driver of the truck. He first identified appellant as the driver when presented with appellant’s driver’s license photo the following day. Benton described the driver of the truck as a white male with dark “spiky-type” hair.

The State also presented testimony of Amanda Garmen, who works for American Storage in Sherwood. According to her testimony, appellant rented two storage units. She testified that video tape from November 2005 showed appellant arriving at the storage facility driving a white Dodge pickup truck. On the day she saw the video, she saw a yellow four-wheeler in the bed of the truck.

Over appellant’s objection, Detective Michelle Stracener testified that she and other officers executed a search warrant on Tomboli’s storage units. During the search, police recovered a yellow four-wheeler, which was later returned to its owner; a set of golf clubs, which was returned to its owner; a golf cart and another set of golf clubs, released to their rightful owner; and two firearms. Jerry Bradley testified that the checks recovered from the stolen truck belonged to him and that he did not authorize appellant to use the checks. Over appellant’s objection, he testified that Stracener returned the golf clubs to him. Appellant made the same objection when Davis Kolasa testified about the theft of his four-wheeler.

Finally, the State presented the testimony of Kelli Martin-dill. She identified herself, appellant, and Ronnie Stover as the subjects of photographs found in the stolen truck. On cross-examination, Martindill testified that Stover matched the description of appellant. When appellant questioned Martindill about Stover’s criminal history, the State objected, contending that Martindill had no personal knowledge of Stover’s record. Appellant argued that the evidence was admissible under a “reverse” Rule 404(b) analysis, but the court sustained the State’s objection. Appellant proffered that Martindill would have testified that Sto-ver was facing several criminal charges, including theft by receiving, for selling stolen items over the Internet.

At the conclusion of the State’s case, appellant moved for directed verdict, arguing that the State failed to prove that the vehicle he allegedly drove was the one stolen from Lamb. He emphasized the characteristics that distinguished Lamb’s vehicle from the one found by police. The court denied the motion, and appellant rested without presenting a case. After deliberations, the jury found appellant guilty of theft by receiving, but found him not guilty of the fleeing charge. It later sentenced him to thirty years in the Arkansas Department of Correction.

Sufficiency of the Evidence

Appellant now challenges the sufficiency of the evidence to support his conviction. He argues that the State presented insufficient evidence that he was the person who was driving the truck in November 2005. Appellant contends that the only evidence connecting him to the truck was a fingerprint on a check found outside the truck and a photograph of him found inside the truck. Regarding the evidence that appellant was driving a white Dodge truck to his storage units, he argues that the State failed to present any evidence identifying the truck, and he urges us to take judicial notice of the fact that hundreds of Dodge trucks are being driven in this State.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006). When a defendant makes a challenge to sufficiency of the evidence on appeal, the appellate court views the evidence in the light most favorable to the State. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict, including evidence erroneously admitted, will be considered. Hicks v. State, 327 Ark. 652, 941 S.W.2d 387 (1997). We affirm the conviction if there is substantial evidence to support it. Id. Circumstantial evidence may constitute sufficient evidence to support a conviction, but it must exclude every other reasonable hypothesis other than the guilt of the accused. Whitt v. State, 365 Ark. 580, 232 S.W.3d 459 (2006). The question of whether the circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is for the jury to decide. Id.

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Tomboli v. State
268 S.W.3d 918 (Court of Appeals of Arkansas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
268 S.W.3d 918, 100 Ark. App. 355, 2007 Ark. App. LEXIS 814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tomboli-v-state-arkctapp-2007.