Beavers v. State, 00-615

• Decision Date: 21 June 2001
• Docket Number: 00-615
• Citation: 46 S.W.3d 532
• Parties: Kimberly BEAVERS v. STATE of Arkansas CR 00-615 Supreme Court of Arkansas Opinion delivered
• Court: Arkansas Supreme Court

Kimberly BEAVERS v STATE of Arkansas

CR 00-615

Supreme Court of Arkansas

Opinion delivered June 21, 2001

1. Appeal & error -- double jeopardy considerations -- challenge to sufficiency of evidence considered first. -- Double jeopardy considerations require the supreme court to consider a challenge to the sufficiency of the evidence before other points are raised.

2. Evidence -- challenge to sufficiency of -- appellate review. -- When a defendant makes a challenge to the sufficiency of the evidence on appeal, the supreme court views the evidence in the light most favorable to the State.

3. Evidence -- direct or circumstantial -- when sufficient to support conviction. -- Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other.

4. Evidence -- weight of -- function of appellate court. -- On appeal, the supreme court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor does it assess the credibility of the witnesses.

5. Evidence -- challenge to sufficiency of -- specific directed-verdict motion necessary. -- To preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove; in contrast, a general motion that merely asserts that the State has failed to prove its case in inadequate to preserve the issue for appeal.

6. Evidence -- challenge to sufficiency of -- not properly preserved for appeal. -- The supreme court held that, having failed to make a specific motion for directed verdict, appellant's sufficiency challenge was not properly preserved for appeal.

7. Witnesses -- statement would not have been admissible -- appellant unable to show prejudice. -- The supreme court held that, because a witness's testimony was not in conflict with his second statement made in the first trial of the matter, it would not have been admissible; further, the supreme court concluded that appellant, having obtained the testimony of the witness allegedly absolving her of responsibility for the crimes and a statement that the witness testified the same way in the first trial, was unable to show prejudice.

8. Witnesses -- prior consistent statement -- admission of. -- When there is an express or implied charge that a witness has fabricated a statement that he is now making under oath, it is then proper, and not hearsay, to show that he made the same statement before the motive for fabrication came into existence; for this rule to apply, the prior consistent statement must be made before a motive to falsify has arisen or before the witness would foresee its effects upon the fact issue.

9. Appeal & error -- party cannot complain of getting what they want. -- A party cannot complain of getting what they want.

10. Witnesses -- refusal to allow defense counsel to use prior testimony -- no error where appellant was unable to show how rulings by trial court prejudiced her. -- Because appellant was able to obtain the testimony she wanted, i.e., that she did not participate in the robbery in question, she was unable to show how the rulings by the trial court prejudiced her in any way; the supreme court, therefore, found no error on the point.

11. Criminal law -- sentencing for habitual offenders -- prior conviction may be used to increase punishment regardless of date of crime. -- The provisions of the Arkansas Habitual Criminal Statute, to which Ark. Code Ann. § 5-4-501(d)(1) (Repl. 1997) is a relatively recent addition, are not deterrent, but punitive, in nature; a prior conviction, regardless of the date of the crime, may be used to increase punishment.

12. Criminal law -- sentencing for habitual offenders -- date of offense immaterial. -- Arkansas Code Annotated section 5-4-501(d)(1) plainly speaks in terms of the conviction date of the offenses and not the dates of the actual crimes; the date of the offense is immaterial, and this has been evidenced in other aspects of sentencing, as well.

13. Criminal law -- sentencing for habitual offenders -- trial court did not err in enhancing appellant's sentence. -- With the date of the offense being immaterial to the application of the code provision that permitted enhancement for prior convictions with offenses committed subsequent to the charged offense, the supreme court held that the trial court did not err in enhancing appellant's sentence accordingly. [wbj]

Appeal from Pulaski Circuit Court; John B. Plegge, Judge; affirmed.

Alvin D. Clay, for appellant.

Mark Pryor, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

W.H. "Dub" Arnold, Chief Justice.

Appellant, Kimberly Beavers, was convicted as an accomplice to Joseph Hill and Tavoris Thomas of aggravated robbery and theft of property for the June 11, 1997, robbery of the Golden Corral Restaurant. She was sentenced pursuant to a sentence enhancement provision to life imprisonment in the Arkansas Department of Correction. We affirm her conviction and sentence.

Prior to being charged in the present case, appellant was charged on July 9, 1997, with capital murder and aggravated robbery for an offense that occurred at the Back Yard Burger on July 1, 1997. The State elected to prosecute the Back Yard Burger offense prior to the present offense, which occurred at the Golden Corral. Appellant was convicted by a jury in the Back Yard Burger case of first-degree murder and aggravated robbery. She was sentenced to two consecutive ten-year sentences in the Arkansas Department of Correction. In the present case, the State used the two convictions in the Back Yard Burger case to enhance appellant's sentence. The felony information was amended on September 1, 1999, to include an allegation that appellant had previously been convicted of two serious felonies involving violence and that her sentence should be enhanced pursuant to Ark. Code Ann. § 5-4-501 (d) (Repl. 1997). Appellant objected to the sentence enhancement, but the trial court determined that the enhancement was proper and, after appellant was convicted by a jury, the court sentenced appellant to life in the Arkansas Department of Correction on the aggravated-robbery count and merged the misdemeanor theft-of-property count. It is from this judgment and conviction that appellant now appeals.

For her appeal, appellant asserts the following points for reversal:

The trial court erred in failing to allow appellant to use prior testimony of a witness for rehabilitation after the State used prior testimony to impeach the witness;

The trial court erred in allowing the State to use two prior convictions to enhance appellant's sentence where the two prior convictions resulted from offenses committed after the present offense;

There was insufficient evidence to support the conviction of appellant since the only evidence connecting appellant to the offense was a statement by a co-defendant who later recanted his statement.

I. Sufficiency of the Evidence

Double jeopardy considerations require this Court to consider a challenge to the sufficiency of the evidence before other points are raised. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State. See Jones v. State, supra; Bell v. State, 334 Ark. 285, 973 S.W.2d 806 (1998); Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. See Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). On appeal, this court does not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. See id.

In the instant case, the appellant asserts that the trial court erred in denying her motion for a directed verdict. However, appellant failed to properly preserve the motion for appeal. At the close of the State's case, defense counsel made the following motion:

Defense Counsel: Judge, at this time we'd make a motion for directed verdict based upon the insufficiency of the evidence. We don't feel that the State has established a prima facie case of theft of property and aggravated robbery.

In Conner v. State, supra, this Court said that:

[i]n order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict which advises the trial court of the exact element of the crime that the State has failed to prove. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); Dulaney v. State, 327 Ark. 30, 937 S.W.2d 162 (1997). In contrast, a general motion that merely asserts that the State has failed to prove its case in inadequate to preserve the issue for appeal. See, e.g., Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997)(claiming that the Stated failed "to prove a prima facie case")[.]

Id., 334 Ark. at 464, 982 S.W.2d at 658. We hold that, having failed to make a specific motion for directed verdict, the appellant's sufficiency challenge was not properly preserved for appeal.

II. Prior Testimony of a Witness

The appellant asserts that the trial court erred in failing to allow her defense counsel to use former testimony to "rehabilitate" the witness, Joseph Hill, who was the appellant's codefendant in this case and another separate but related case (the Back Yard Burger case), after the State impeached Hill with his testimony from a former trial.

Joseph Hill had previously entered into a plea agreement with the State whereby he agreed to testify truthfully at appellant's...