Selph v. State, CR78-53

• Decision Date: 11 September 1978
• Docket Number: No. 2,No. CR78-53,CR78-53,2
• Citation: 264 Ark. 197,570 S.W.2d 256
• Parties: Gary Michael SELPH, Appellant, v. STATE of Arkansas, Appellee
• Court: Arkansas Supreme Court

Page 256

570 S.W.2d 256

264 Ark. 197

Gary Michael SELPH, Appellant, v. STATE of Arkansas, Appellee.

No. CR78-53.

Supreme Court of Arkansas, Division No. 2.

Sept. 11, 1978.

Donald R. Langston and John W. Settle, Fort Smith, for appellant.

Bill Clinton, Atty. Gen., by Joseph H. Purvis, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Gary Michael Selph received a suspended sentence on a charge of burglary and theft of property in the Circuit Court of Sebastian County on April 7, 1977. On December 13, 1977, a petition to revoke the suspension was filed. It was based on an allegation that Selph had violated the terms of the suspension by committing burglary on October 8, 1977. After a hearing on December 14, 1977, the suspension was revoked. Two days later, appellant filed a motion to set aside the order of revocation, alleging that the state had introduced evidence of incriminating oral statements, allegedly made by him, without having been required to prove the voluntariness of the statements and that, without this testimony, the evidence was insufficient to justify the revocation. He requested a hearing on the motion, but no hearing was held and appellant elected to give notice of appeal on January 12, 1978, and the appeal was lodged here on April 10, 1978, apparently without appellant's ever having been heard on his motion.

Appellant first contends that the court erred in revoking the suspension of his earlier sentence because the state failed to prove a violation of the terms of the suspension by a preponderance of the evidence. He concedes that he has the burden of showing that the trial court's finding was clearly against the preponderance of the evidence. See Pearson v. State, 262 Ark. 513, 558 S.W.2d 149.

Appellant first argues that the evidence, including his incriminating statements, is insufficient to show a burglary committed by him. We disagree when we view the evidence in the light most favorable to the state, as we must.

On October 8, 1977, at 10:41 p. m., Officer Cooper answered a call reporting a burglary at Brandee's Fast Food, a drive-in restaurant, which was closed for the night, located at 12th and Midland in Ft. Smith. There are paved parking lots in front of, on each side of, and immediately behind the restaurant. Further to its rear, there is a parking lot for trailer trucks connected with an ice plant. Cooper found a picture window facing 12th Street broken so that a medium-sized man could walk right through the window. Cooper entered the building. Neither he, nor anyone else who testified, found any evidence that anyone had physically entered the building or taken anything from it. When Cooper left the building he was approached by a woman. While engaged in conversation with her, he noticed a man (positively identified by him as Selph) squatting near the wheels of a trailer truck on the ice plant parking lot. When Cooper approached the trailer, which was 25 to 50 feet away, Selph started across the back of the cab of the truck, and, when Cooper came closer, Selph "hit the ground," looked at the officer and ran. Selph, in his flight, "flew" over a chain link fence eight feet high. When Selph arose from the ground, he started toward Cooper and it appeared to Cooper that he had something in his hand. Cooper commanded that Selph "halt" and, fearing that Selph had a weapon, drew his pistol and fired one shot into the ground and two others in the direction of Selph as he ran into an adjoining field. Later Selph was taken to a hospital by Officer Lowrance for treatment of a wound in the area of his buttocks.

Lowrance described Selph as being exhausted, weak, run-down and out of breath when he took Selph from the custody of Captain Bettis, who had called for assistance after he had taken Selph into custody at a place separated from the restaurant only by a field covered with tall vines and grass. After having been advised of his right to counsel and his right to remain silent, and without having been asked any questions, Selph admitted having been in the area around the restaurant after he had heard a report of a burglary and having been chased and shot by an officer, even though he vacillated between differing versions of the shooting.

Selph's shoes matched prints found on the ground in the ice plant parking lot and on the gas tanks of a truck parked there. The prints were about 15 yards from the building. The area immediately behind the restaurant building for a distance of approximately ten yards was covered with a material that would not show footprints.

Officer Caldwell was assigned the duty of guarding Selph at the hospital. On October 9, at approximately 9:55 p. m., Selph and Caldwell were watching television, when Selph, without any interrogation by Caldwell, began relating events of the preceding evening. Selph said that the officers had suspected that his wife had been with him at the time of the alleged "break-in" and then began talking of the girl at the scene, saying, "They thought that girl was with me when I broke in that place."

Selph elected to testify. He admitted that he had been hiding behind the truck for about ten minutes before he was found by Officer Cooper. He also admitted that the officer yelled at him when he started over the fence, and that he "took off." He said that in talking to Officer Caldwell at the hospital, he was only referring to a clipping from a Ft. Smith newspaper which included a statement that a "long blond-haired girl" had been with him. He said the clipping had been brought to him by his wife. Yet, on cross-examination, he said that he did not remember what had happened in the hospital room and did not even remember being in there. Selph testified that he had walked in front of the restaurant and said that the police had been to the scene, made an investigation and left before he arrived, but had returned after he had hid in the parking lot. Selph had, on one occasion, said that he knew of the "break-in" at Brandee's because his wife had told him of it. She denied having had such a conversation with him. Selph had given differing explanations of his having been shot, including two versions other than the admission that he had been shot by officers while near the restaurant.

Appellant is correct in his argument that the evidence did not show an entry into the building, which is an essential element of the crime of burglary as defined by Ark.Stat.Ann. § 41-2002 (Repl.1977). But it was sufficient to show the lesser included offense of breaking or entering defined by § 41-2003 (Repl.1977), which itself constituted a violation of the terms of the suspension of his sentence. Appellant's statement to Caldwell, if that officer's testimony be given full credence, as it obviously was, is sufficient to connect him with the crime of breaking. This statement, along with Selph's presence at the scene, his attempt to hide, his flight upon approach of Officer Cooper and the circumstances of his apprehension, constituted sufficient evidence of the corpus delicti. Mouser v. State, 215 Ark. 131, 219 S.W.2d 611.

Appellant also argues that, even assuming that he voluntarily made the statement attributed to him by Caldwell, the evidence is insufficient, unless there is other proof that a crime was committed, as required by Ark.Stat.Ann. § 43-2115 (Repl.1977). This statute, by its own language, applies only where a conviction of the crime charged is sought on a trial...