Traylor v. State
| Decision Date | 17 December 1990 |
| Docket Number | No. CR,CR |
| Parties | Kenneth TRAYLOR, Appellant, v. STATE of Arkansas, Appellee. 90-119. |
| Court | Arkansas Supreme Court |
Joe K. Hardin, Benton, for appellant.
Sandra Bailey Moll, Asst. Atty. Gen., Little Rock, for appellee.
Kenneth Traylor, appellant, was convicted of breaking or entering, theft of property and of being a felon in possession of a firearm. He was sentenced to a fine of $20,000 and a term of 60 years in the Arkansas Department of Correction. On appeal, appellant argues four points for reversal. We affirm.
John Matlock testified his barn was broken into between October 2 and October 6, 1989, and several items were stolen. The items introduced at trial as stolen from his barn were an air compressor, a mitre saw, a chainsaw and a .410 gauge shotgun. The state crime lab determined that the shackle of the lock on Matlock's barn had been cut by bolt cutters found in the vehicle that appellant was driving when stopped by a sheriff's deputy on October 13, 1989.
Katherine Shelton, who runs Mattie's Cafe in Sparkman, testified at trial that appellant came to her cafe in October, 1989, and offered to sell her the items allegedly taken from Matlock's barn. Shelton bought the shotgun and loaned money to John Oliver to buy the saws and the compressor.
Appellant had previously been convicted of aggravated robbery and two counts of burglary and theft. Ark.Code Ann. § 5-4-501 (1987) provides for enhancement of penalties when a person is convicted of a felony if that person has previously been convicted of a felony. Under Ark.Code Ann. § 5-73-103 (1987), it is a separate offense for a person who has previously committed a felony to be in possession of a firearm.
Appellant argues that the state cannot use his prior felony convictions to convict him of felon in possession of a firearm and then use the same prior felony convictions to enhance the penalty for that conviction.
Ark.Code Ann. § 5-4-501 through § 5-4-505 (1987), the habitual offender statute, does not create a distinct additional offense or independent crime but simply affords evidence to increase the punishment and to furnish a guide for the court or jury in fixing the final punishment in event of conviction of the offense charged. Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).
Although appellant does not explicitly state it, it would appear he is making an argument that his right to be free from double jeopardy is being violated. Appellant was not convicted of two offenses which share the same elements, and thus he was not twice put in jeopardy for the same offense. Accordingly, we find that the trial court did not err in denying appellant's motion to prohibit enhanced penalties for his felon in possession of a firearm conviction under Ark.Code Ann. § 5-4-501 (1987).
Next, appellant contends that he was prejudiced and received an unfair trial because the state was allowed to amend the information on the day of the trial charging him under the habitual offender statute, Ark.Code Ann. § 5-4-501 (1987). Appellant contends that since he did not fully know the charges against him until the day of the trial, his constitutional rights were violated.
The record of the lower court's proceedings shows that appellant was put on notice that the state intended to make an amendment to the information to enhance appellant's punishment through the habitual offender statute, and that appellant was not surprised when the trial court allowed the information to be amended so as to allow for enhancement of his punishment upon conviction.
Further, appellant stated in a motion filed one day before the trial that he was aware that the state intended to try appellant as a habitual offender. In Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987), the state filed an amended information four days before trial to show that the defendants were habitual offenders. The court ruled that since the defendants' attorneys had been given a "rap sheet" showing that the defendants were habitual offenders, there was no surprise when the information was amended.
The amended information did not change the nature or degree of the crime, but simply afforded evidence to increase the punishment. Harrison v. State, 287 Ark. 102, 696 S.W.2d 501 (1985); Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985). Also, appellant did not ask for a continuance and did not demonstrate prejudice. We hold the trial court did not err in allowing the state to amend its information, charging appellant as a habitual criminal, on the day of trial.
As to the circumstantial evidence the state offered at trial, the bolt cutters, appellant contends this was not sufficient evidence to prove he committed the offense of breaking or entering. He argues that there are other possible defendants for the offenses he has been convicted of since there were other people present when the stolen items were sold.
In determining the sufficiency of the evidence upon appeal, this court considers the testimony that tends to support the verdict and views the testimony in the light most...
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Davis v. State, CR
...with innocence. It is up to the jury, however, to determine whether the evidence excludes every hypothesis. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). The matter of premeditation and deliberation and intent may all be inferred from the circumstances. An instant of premeditation ......
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Echols v. State
...for circumstantial evidence to be sufficient, it must exclude every reasonable hypothesis, and cites as authority Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). Before narrating the testimony of his guilt, we again emphasize, as we have often done, that although the jury should be i......
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Glaze v. State
...The fact that the State filed the amended felony information on the morning of trial is of no consequence. In Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990), we affirmed an amendment that was filed on the day of the appellant's trial. There, we noted that the amendment did not change......
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...from a denial of a directed verdict, we look to see if there is any substantial evidence to support the verdict. Traylor v. State, 304 Ark. 174, 801 S.W.2d 267 (1990). Substantial evidence has been defined as being of sufficient force and character to compel a conclusion one way or the othe......