Tyler v. State, 012021 ARCA, CR-20-277

Docket Nº:CR-20-277
Opinion Judge:ROBERT J. GLADWIN, JUDGE.
Party Name:CARMEN TYLER APPELLANT v. STATE OF ARKANSAS APPELLEE
Attorney:Terry Goodwin Jones, for appellant. Leslie Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't Att'y Gen., for appellee.
Judge Panel:Murphy and Brown, JJ., agree.
Case Date:January 20, 2021
Court:Court of Appeals of Arkansas

2021 Ark.App. 23

CARMEN TYLER APPELLANT

v.

STATE OF ARKANSAS APPELLEE

No. CR-20-277

Court of Appeals of Arkansas, Division II

January 20, 2021

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT [NO. 16JCR-17-361] HONORABLE JOHN W. LANGSTON, JUDGE.

Terry Goodwin Jones, for appellant.

Leslie Rutledge, Att'y Gen., by: Michael L. Yarbrough, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, JUDGE.

Carmen Tyler appeals the revocation of her probation in the Craighead County Circuit Court, which found that she had violated her probation conditions by committing theft. She argues that the circuit court erred when it allowed testimony that violated her right to confront and cross-examine adverse witnesses and that the State offered insufficient proof about the theft's timing. We affirm.

I. Facts

On April 6, 2017, Tyler was charged with two counts of second-degree forgery as a result of allegations that she had stolen two checks from her employer and that she had forged and cashed them. On October 2, 2017, Tyler was sentenced to sixty months' probation based on a negotiated guilty plea. Her probation was subject to conditions, which included that she not commit a criminal offense punishable by imprisonment and that she pay supervision fees, fines, and restitution. On February 26, 2018, the State filed a petition to revoke Tyler's probation, and it alleges: TYLER has failed to live a law-abiding life and was charged with allegedly committing new crimes in Craighead County on December 12, 2017, for Theft (>$25, 000); and, TYLER has a balance of $4, 191.24 due to the Craighead County Sheriff's Office for restitution, fines and court costs, having been charged with committing theft, and that she had a balance of $4, 191.24 due to the Craighead County Sheriff's Office for restitution, fines, and court costs.

On January 15, 2020, a hearing was held on the State's revocation petition. Tommye McNamara testified that she had hired Tyler through Care.com to work as a housekeeper. She said that Tyler had access to the entire house and that she had worked weekly. Ms. McNamara testified that on December 5, 2017, during the period of Tyler's employment, she realized that her jewelry was missing and that she contacted the police. She said that she had told the officers that the jewelry had been stolen sometime in the six months before December 5, 2017. Before Tyler's employment, Ms. McNamara had two workers who had access to her house, but no one else did because Ms. McNamara was taking chemotherapy treatments. She said that the two other women had worked for about a month each before she hired Tyler and that she never saw Tyler or the other women take anything. Ms. McNamara said that she recovered three pieces of her jewelry from United Pawn and that she had to pay $300 for it.

Jonesboro Police detective Chad Hoggard testified that he investigated the case and that Tyler had been a house cleaner for the McNamaras. He said that in theft allegations such as these, he always checks for the suspects on Leads Online, which is a national database for pawnshop records that includes all records of pawnshop buys, and he found several "hits" of Tyler pawning jewelry. When Detective Hoggard affirmed that Leads Online is a record made by the pawnshop of the sale date, address of the seller, and the item that is pawned, defense counsel raised an objection based on a lack of foundation for Hoggard's knowledge. The circuit court ruled that defense counsel could voir dire the witness but that the State could finish its line of questioning first.

Detective Hoggard said that he had corroborated the information from Leads Online with the merchants. Defense counsel objected to "anything about corroborating with the merchant as outside the Confrontation Clause." The circuit court allowed defense counsel to voir dire the witness. Thereafter, the court ruled, "As to the question about him corroborating with the pawnshop, I'm going to sustain that, but the rest of it's overruled. It appears to be information upon which the officer acted. So you may proceed, sir."

Detective Hoggard was shown four documents, and he said the documents are tickets from Leads Online, the pawnshop records of what the shops buy or people pawn with the description of the item and the address of the person selling it. When Detective Hoggard was asked if the address was the same on all four of the tickets, defense counsel objected arguing that the witness was "reading off of a piece of paper," and if the paper was being offered into evidence, counsel wished to object before anything was read from it. The State affirmed that it was seeking admission of the evidence, and defense counsel argued that the Leads Online tickets were testimonial in nature, subject to the Confrontation Clause, and were hearsay. The circuit court overruled the objection and noted that the objection was continuing.

Detective Hoggard testified that the addresses on the documents were all similar.1The dates reflected that the pawns occurred on November 3 and 20, 2017, and the items listed are a silver and turquoise ring, bracelets, and gold earrings. The circuit court received the documents over defense's objection, which was renewed.

Detective Hoggard testified that he interviewed Tyler, who told him that she took the jewelry and pawned it because her son was going on a vacation with a friend to Florida and that he needed money for things for that trip. On cross-examination, he said that Tyler did not tell him when she took the...

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