Hardrick v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: PITTMAN
• Citation: Hardrick v. State, 885 S.W.2d 910, 47 Ark.App. 105 (Ark. App. 1994)
• Decision Date: 02 November 1994
• Docket Number: No. CA,CA
• Parties: Alan Deandre HARDRICK and Gregory Darnell Price, Appellants, v. STATE of Arkansas, Appellee. CR 93-1192.

Page 910

885 S.W.2d 910

47 Ark.App. 105

Alan Deandre HARDRICK and Gregory Darnell Price, Appellants, v. STATE of Arkansas, Appellee.

No. CA CR 93-1192.

Court of Appeals of Arkansas En Banc.

Nov. 2, 1994.

Mark Denniston, Fayetteville, for Hardrick.

Kent McLemore, Fayetteville, for Price.

Gil Dudley, Asst. Atty. Gen., Little Rock, for appellee.

PITTMAN, Judge.

Appellant Alan Hardrick appeals his convictions of aggravated robbery and theft of property for which he was sentenced to ten years and three years, respectively, in the Arkansas Department of Correction. He argues that it was error to admit into evidence pre-trial and in-court identifications, that it was error to admit evidence that the gun used in the robbery was stolen, and that there is insufficient evidence to sustain each conviction, namely, that the value of the stolen property was not proved to exceed $200.00. We find no error and affirm.

Appellant Gregory Price appeals a conviction of theft of property, a Class C felony, for which he was sentenced to three years in the Arkansas Department of Correction. He argues there is insufficient evidence to uphold his conviction for a failure to prove the property's value exceeded $200.00. We find no error and affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence, and this issue must be considered prior to a review of trial errors. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict, and will affirm if there is any substantial evidence to support the finding of guilt. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). Substantial evidence is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Thomas v. State, 311 Ark. 609, 846 S.W.2d 168 (1993).

The victim, employed as a delivery driver, testified that around 9:00 p.m. on October 14, 1992, he went to Bud Walton Hall on the University of Arkansas campus to deliver food to a room on the second floor. Upon receiving no answer at the room, he turned to leave and noticed near the elevator a man about 6 feet tall and weighing about 170 pounds. The victim stated that as he walked toward the exit, he noticed near the stairs a second man about 6 feet 2 inches tall and weighing about 200 pounds wearing a navy blue sweatshirt and a dark colored ball cap. The victim said that as he turned a corner, he was grabbed by the back of the neck by the second individual he had seen and was shoved into the closed elevator doors. When he tried to pull back, a second person pushed him again toward the elevator. He also felt a hard object pressed against him. He was told to give them the money. The victim said that he wore a "fanny pack," that he took it off and then one of them, maybe the shorter of the two men who had been by the elevator earlier, grabbed it, while the other person continued to hold him by the neck with something held to his back. The victim said he was then pushed on the stairs and shown the barrel of a gun and told, "This is what I got, so do what I say or I'll shoot you." He said he was told to be quiet and walk directly back to his car, which he did. Sergeant Gary Bogle of the University of Arkansas Police Department arrived shortly after the robbery. He found a gun in the trash can on the second floor of the building. The victim subsequently identified this gun as the one used in the robbery. Ruby Ross with the Arkansas Crime Lab determined that appellant Hardrick's fingerprints were on ammunition in the gun. Appellant Hardrick conceded that the gun looked like his gun, but stated that he had disposed of it before the robbery occurred. The victim identified Hardrick in a pre-trial line-up with 50 percent certainty.

A person commits aggravated robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another and is armed with a deadly weapon or represents by word or conduct that he is so armed. Ark.Code Ann. § 5-12-102(a) and -103(a)(1) (Repl.1993). Our review of the record indicates that the evidence is sufficient to support Hardrick's conviction of aggravated robbery. Hardrick essentially argues that alibi testimony which stated he was in a student's dormitory room at the time of the robbery overcomes the incriminating evidence against him. However, weighing the evidence, determining credibility, and resolving conflicts are matters for the factfinder, who may accept or reject any part of a witness's testimony. Winters v. State, 41 Ark.App. 104, 848 S.W.2d 441 (1993). Appellant Hardrick also contends that the victim's pre-trial identification should not be considered in determining the sufficiency of the evidence. However, in reviewing the sufficiency of the evidence, we look at all of the evidence even if some evidence is determined to be inadmissible. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

Appellants' sole challenge to the sufficiency of the evidence to support their convictions of theft of property is that the State failed to prove that the property value exceeded $200.00 to convict of a Class C felony. A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person or knowingly obtains the property of another person, by deception or threat, with the purpose of depriving the owner thereof. Ark.Code Ann. § 5-36-103(a)(1) and (2) (Repl.1993). Theft of property is a Class C felony if the value of the property is less than $2,500.00 but more than $200.00. Ark.Code Ann. § 5-36-103(b)(2)(A) (Repl.1993). "Value" is the market value of the property at the time and place of the offense or if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. Ark.Code Ann. § 5-36-101(11)(A)(i) and (ii) (Repl.1993). The victim stated that he really did not know what the fanny pack was worth, that he purchased it used from a friend for $5.00 about nine to ten months before the theft, and that a replacement of lesser quality would cost $15.00. Appellants argue that the purchase price of the fanny pack conclusively determines its value. However, the purchase price paid by the owner is admissible only as a factor for the jury to consider in determining market value when it is not too remote in time and bears a reasonable relation to present value. Coley v. State, 302 Ark. 526, 790 S.W.2d 899 (1990). It is the owner's present interest in the property that the law seeks to protect. Hughes v. State, 3 Ark.App. 275, 625 S.W.2d 547 (1981). In determining market value, the factfinder may consider when the owner purchased the property and at what price as well as the present cost to replace the property. Sullivan v. State, 32 Ark.App. 124, 798 S.W.2d 110 (1990).

The principal investigator Steve Myer with the University of Arkansas Police Department testified that $185.30 in the fanny pack was also taken. The court overruled an objection that there was no foundation for the basis of the officer's knowledge and stated that counsel could cross-examine on that point. Appellants argue on appeal that this testimony is inadmissible hearsay. However, the only objection at trial to this testimony was a lack of foundation for the officer's knowledge, which the court overruled. ¹ A party may not change the grounds for objection on appeal. Walker v. State, 301 Ark. 218, 783 S.W.2d 44 (1990). In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court held that when there is a challenge to the sufficiency of the evidence, we must review that point prior to considering any alleged trial errors and, in doing so, we must consider all the evidence, including any which may have been inadmissible, in the light most favorable to appellee. We affirm the conviction if there is substantial evidence to support the trier of fact. Ryan v. State, 30 Ark.App. 196, 786 S.W.2d 835 (1990). The evidence before the jury in this case was sufficient to support the denial of the directed verdict motion, and we conclude that there was substantial evidence to support the court's finding that the value of the stolen property exceeded $200.00.

Appellant Hardrick's next argument is that two pre-trial photographic line-ups were unduly suggestive as he and co-defendant Price were the only suspects who were included in both line-ups and that the pre-trial and in-court identifications are inadmissible because the victim was not completely certain in his identification of Hardrick. The first line-up took place on October 22, 1992, eight days after the robbery, and consisted of fifteen photographs. Officer ...