Sullivan v. State

• Decision Date: 31 October 1990
• Docket Number: No. CA,CA
• Citation: 32 Ark.App. 124,798 S.W.2d 110
• Parties: Dean Howard SULLIVAN, Appellant, v. STATE of Arkansas, Appellee. CR 90-1.
• Court: Arkansas Court of Appeals

Page 110

798 S.W.2d 110

32 Ark.App. 124

Dean Howard SULLIVAN, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 90-1.

Court of Appeals of Arkansas En Banc.

Oct. 31, 1990.

Jerry Sallings, Deputy Public Defender, Little Rock, for appellant.

Paul L. Cherry, Asst. Atty. Gen., Little Rock, for appellee.

CRACRAFT, Judge.

Dean Howard Sullivan appeals from his conviction at a non-jury trial of the crimes of burglary and theft of property of a value in excess of $2500.00, for which he was sentenced to concurrent eight-year terms in the Arkansas Department of Correction. He contends that the trial court erred in denying him the right to cross-examine a witness concerning an alleged agreement to testify on behalf of the State; that the evidence was insufficient to sustain a finding that the stolen property was of a value of at least $2500.00; and that the evidence was insufficient to sustain the finding of guilt because he was convicted on the uncorroborated testimony of accomplices. We affirm.

Where the sufficiency of the evidence is challenged on appeal of a criminal conviction, our rule requires a review of that issue prior to consideration of asserted trial error. This rule is based on double jeopardy considerations, which would preclude a second trial where a conviction is reversed for insufficient evidence. In such cases, this court views the evidence, and all permissible inferences to be drawn therefrom, in the light most favorable to the State, and will affirm if there is any substantial evidence to support the findings of the factfinder. Harris v. State, 15 Ark.App. 58, 689 S.W.2d 353 (1985). Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other without having to resort to speculation or conjecture. Booth v. State, 26 Ark.App. 115, 761 S.W.2d 607 (1989). Hearsay admitted without objection may constitute substantial evidence. Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990); Bishop v. State, 294 Ark. 303, 742 S.W.2d 911 (1988). The fact that evidence is circumstantial does not render it insubstantial. Sweat v. State, 25 Ark.App. 60, 752 S.W.2d 49 (1988).

When viewed in this light, the evidence indicates that, on January 27, 1989, the home of Maria Stewart was burglarized. The victim testified that a mink coat, VCR, shirt, and fruit were stolen, and that the total value of these items was $2,600.00 to $2,700.00. She further testified that she had purchased the mink coat in 1979 or the early 1980's for $2,200.00 and the VCR in 1987 for $279.00. The victim testified that she found the current price on "coats of that type" to be "anywhere from $3,000.00 to $5,000.00." The victim's coat was later recovered but it was damaged to such an extent that it could not be repaired or restored. There was no evidence as to the value of the shirt, and the victim testified that the fruit was not worth more than two or three dollars.

Donald Wade testified that, on the night of the burglary, he was going to the Boys' Club when he saw Bryan McKnight, Kenneth Martin, and appellant coming out from behind the club, which was next to the victim's home. Wade stated that he saw McKnight and appellant enter the house and that, when they came out, McKnight was carrying a coat and a VCR. He testified that they all then went to Shannon Handley's house. Shannon Handley testified that that night Donald Wade, Kenneth Martin, Bryan McKnight, appellant's brother, and appellant came to his house. He stated that McKnight was carrying a fur coat and appellant was carrying a VCR. Handley testified that all of them, including appellant, stated that they had broken into a house. He further testified that appellant left his house carrying the VCR.

Prior to trial, appellant gave the police a statement, in his own handwriting, as follows:

On January 27, 1989, I was with Bryan McKnight when he broke into a house on Stevenson Street. Bryan first went back of the house and returned with a VCR. He then went to another room and got a fur coat and shirt. I don't know who got the strawberries. When we left the house I carried the VCR over to Shannon's house and set it down on the table. That was the last time I seen it. Bryan McKnight threw [the] fur coat and shirt outside.

Appellant's sufficiency argument is two-fold. First, he argues that the evidence is not sufficient to sustain a finding that the stolen property was of a value of at least $2,500.00. We disagree.

Theft of property is a class B felony if the property stolen is worth $2,500.00 or more. Ark.Code Ann. § 5-36-103 (Supp.1987). Arkansas Code Annotated § 5-36-101(11)(A) (Supp.1987) defines value as follows: (i) the market value of property or services at the time or place of the offense; or (ii) if the market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the offense. It is well settled that an owner of property is competent to testify as to the value of his own property. Smith v. State, 300 Ark. 330, 778 S.W.2d 947 (1989). Cannon v. State, 265 Ark. 270, 578 S.W.2d 20 (1979); Phillips v. Graves, 219 Ark. 806, 245 S.W.2d 394 (1952). In Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), the supreme court recognized that there is a point at which the testimony of the property owner as to value does not constitute substantial evidence of the value of the property at the time of the theft. This case does not present such a situation.

Here, the victim testified, without objection, that the cumulative value of her property was between $2,600.00 and $2,700.00. She stated, without objection, that the value of the VCR was $279.00. She further testified without objection as to what she had paid for the coat, how long she had had it, and the cost of a new coat similar to, though not "exactly" like, the one stolen--all factors that could have been considered by the factfinder in determining the market value of the coat. There was no evidence as to the value of the shirt. From our review of all the evidence before the trial court, we cannot conclude that the finding that the cumulative value of the stolen property was at least $2,500.00 is not supported by substantial evidence. See Stewart v. State, 302 Ark. 35, 786 S.W.2d 827 (1990); Watson v. State, 271 Ark. 661, 609 S.W.2d 673 (Ark.App.1980). To hold otherwise, this court would have to make a finding that the victim's testimony as to the cumulative value of her property that was stolen was not credible, and that is not our function.

Second, appellant argues that the evidence was insufficient to find him guilty of burglary and theft of property because such findings were based solely on accomplice testimony. We cannot agree.

We agree with appellant that a conviction for a felony cannot be had on the testimony of an accomplice, unless corroborated by other evidence tending to connect the defendant with the offense. Ark.Code Ann. § 16-89-111 (1987). Ordinarily the question of whether one is an accomplice is a mixed question of fact and law to be submitted to and determined by the factfinder. Lee v. State, 27 Ark.App. 198, 770 S.W.2d 148 (1989); Woodward v. State, 16 Ark.App. 18, 696 S.W.2d 759 (1985).

Here, both Handley and Wade denied any participation in the burglary, stating only what they had observed others doing that night. Even according to appellant's argument, the only evidence possibly linking Wade to the crime was Handley's statement that Wade was one of the people who came over to his house and that they all said that they had broken into a house. The only evidence possibly connecting Handley to the crime was the fact that he informed the police of where the coat had been discarded. From our review of the record, we cannot conclude that either of these witnesses should be held to be an accomplice as a matter of law or that a finding that neither was an accomplice to the crime is not supported by substantial evidence. Furthermore, appellant's own written statement given to the police and introduced into evidence, at the very least, connected appellant with the offenses.

Appellant also contends that the trial court erred in denying him his right to cross-examine a witness concerning an agreement to testify on behalf of the State. On cross-examination, Handley was questioned about any "deal" that he might have made with the prosecuting attorney in return for his agreement to testify. The trial court sustained the State's objection, and appellant's counsel then stated for the record that Handley would answer that he had agreed to appear and testify in exchange for a favorable disposition on another charge pending against him.

We agree that evidence of guarantees of immunity or promises of leniency or other considerations given to a prospective witness are proper subjects of cross-examination, and the denial of that right may violate constitutional guarantees of confrontation. Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Klimas v. State, 259 Ark. 301, 534 S.W.2d 202 (1976); Guinn v. State, 27 Ark.App. 260, 771 S.W.2d 290 (1989). However, the fact that it might have been error to deny the right to cross-examine on that subject does not necessarily mandate reversal. The denial of the right of cross-examination on such issues, like any other trial error, is subject to being found harmless under the circumstances of the particular case. Delaware v. Van Arsdall, supra; Klimas v. State, supra; Guinn v. State, supra. In Delaware v. Van Arsdall, the Supreme Court of the United States stated:

Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the...