*1 The trial in Ponder. the law as stated contradicts reduction directly and acknowledged testimony credited court clearly it of medical expenses of the documentation authenticity Therefore, be re- should evidence. judgment into received versed. dissent.
I respectfully
Bird, J., joins. of Arkansas Keith HELMS STATE
Darren 04-1197 CA CR of Arkansas
Court Appeals 22, 2005 delivered Opinion June Defender, Turner, Public Brandy R. Jr., William Simpson, Defender, Defender, Miller, Public Clint Public by: Deputy Deputy for appellant. Beebe, Gen., Ass’t David R. Senior Att’y
Mike Raupp, Att’y by: Gen., for appellee.
Andree LaytonRoap, Darren Judge. Appellant residential convicted of by jury *2 misdemeanor theft of of$500 with a value or less.Helms was property sentenced as an habitual offender with more than one but less than four convictions to prior felony twenty-five years’ imprisonment the Arkansas of Correction for residential and Department burglary was fined and $1000 sentenced to one of incarceration in the year for theft of On Helms that the county jail trial property. appeal, court erred in a State’sdocument into evidence the admitting during the State to also reference facts penalty allowing showing that Helms committed the at issue while he offenses was released on bond in connection with two unrelated We affirm. charges. trial,
At the State introduced the of two witnesses testimony Helms was of residential and theft prove guilty of with a value $500 or less. of the One State’s witnesses property was the victim, Hoskinson, Steven and the other witness was Pulaski Sheriffs Office Lewis County Hoskin- Investigator Wig. 21, 2003, son testified that on he discovered that someone had July broken into his house and had taken some of his personal property, television, stereo, eater, a weed including meat from his portable guns, pellet freezer, and a box of checks. stopwatch, Investigator and he 23, testified 2003, that he arrested Helms on Wig took July a custodial statement from Helms. first made Investigator Wig contact with Helms while Helms was in his automobile. asleep Helms, arrested Investigator he found two Wig books of Hoskinson’s checks inside Helms’s automobile. According Helms admitted that he and Investigator Wig, an had accomplice broken into Hoskinson’s house and had stolen some of Hoskin- son’s personal property. The found Helms of residential jury and theft guilty trial, In the the the State penalty phase proved had Helms three misdemeanor convictions and three prior prior convictions. The State also to introduce State’s sought
Exhibit No. which that, was a document when establishing issue, had committed the criminal offenses at he was free on bond from the North Little Rock Court after Municipal having been arrested on two counts of Defense forgery. counsel objected to of State’s Exhibit No. that the arguing exhibit was not relevant and that it stated that Helms was on bond for knew about and charge of which Helms nothing had been convicted of. The trial court admitted State’s Exhibit No. 6 over the defense counsel’s told objection. prosecutor should “be aware that jurors they was out on [Helms] bond at the time the offense was committed. ...” trial, mother, Ellen During penalty phase cross-examination, Helms, testified for the defense. During to ask bench and asked approached permission prosecutor Ellen Helms about the for which Helms was out on forgery charges from, bond because the contended that the victim of those State Ellen The defense counsel to this Helms. objected forgeries it was not relevant. The trial court questioning, arguing allowed the line of Ellen Helms testified that she had questioning. Helms’s bond for the and that she did not forgery charges paid know the victim of the forgery charges. of the State’s
During closing argument penalty phase, reminded the that at the time Helms committed jurors prosecutor the offenses he had been free from incarceration on bond pretrial *3 unrelated criminal In the initial from State’s charges. closing stated: argument, prosecutor
We are to in mind that he is someone who had asking you keep chance, that also had made a bond and given probation, offense, committed this new someone that had been in the county and releasedand committed this new I’m jail gotten offense. asking that in mind as come with what you keep today you you up deem to be an sentence. appropriate In the final State’s stated: closing argument, prosecutor
Also, don’t that when he committed this 21st please forget July he was out on bond for a different case. He has been burglary, mean, his chances. There is no doubt given about that. he acts like he wants to to for a time. He won’t learn his go prison long lesson,and he these crimes. keeps committing Helms, offender, The sentenced as an habitual jury in the Arkansas twenty-five years’ imprisonment Department Correction for residential and to one of incarceration year $1000 in the and a fine for theft of The trial county jail court ran Helms’s sentence of twenty-five year imprisonment to an sentence of consecutively eighteen-year imprisonment he was Helms now from his sentence. already serving. appeals that the trial court erred when it admitted State’s No. and Exhibit cross- permitted prosecutor examine Ellen Helms unrelated Helms’s concerning The in accused State contends status charges. response Exhibit No. admissible under Ark. as shown State’s 6 was Code by 2003), which 16-97-103(5) (6) (Supp. permits § introduction of character evidence and circumstances aggravated at sentencing. Arkansas,
In
criminal
in which a
sits
as
prosecutions
jury
trier-of-fact are bifurcated into a
and a
guilt-innocence phase
Ark. Code Ann.
16-97-101
A trial
2003).
penalty phase.
(Supp.
court’s decision to admit evidence in the
of a trial is
penalty phase
State,
reviewed for an abuse of discretion.
v.
349 Ark.
Buckley
Evidencerelevantto include, either the court or sentencingby jury may to,
but is not limited . . . following evidence; (5) Relevant character (6) Evidence of aggravating mitigating circumstances.The criteriafor from the standards serve departure sentencing as may evidence; this . . . examples type While evidence introduced include during sentencing phase may *4 section, evidence described in this the list is not exhaustive. Crawford, supra.
With to the of relevant character evi- respect dence under Ark. Code we 16-97-103(5), first note that Rule 404 of the Arkansas Rules of Evidence states that character evidence is not admissible for the of generally purpose proving acted in therewith on a occasion person conformity particular and that the rule then lists some to this rule. While it is exceptions true that our evidence rules the introduction of evidence in govern trials, that, of our court has also held sentencing phase supreme 16-97-103, Ark. Code Ann. certain evidence is pursuant admissible at that would not have been admissible at sentencing of the trial. guilt Character evidence that phase Crawford,supra. not be admissible at the could might be admissible at guilt Id. sentencing.
Relevant evidence is evidence having any tendency make the of fact that is of to the existence any consequence determination the action or less than it of more probable probable would be without evidence. Ark. R. Evid. 401. In present case, but not Helms accused convicted of although evidence Helms was out on bond when he committed forgery, residential and theft his property provided proof character and was relevant to the determination of an jury’s Helms that the appropriate punishment. jurors’ knowledge that he committed criminal offenses while he had had been free on bond in connection with tells the charges jury nothing about his character if the never were told that a condition of jurors his bond was that he to commit agreement agreed any evidence, additional crimes while free In on bond. considering use common Ark. their sense. jurors may Bridges App. need not have learned of (1994). the details of bond to understand that the requirements fact that was out when on bond he committed the new crimes about his character. says something
Affirmed.
Glover, J., agrees.
Griffen, J., concurs.
Wendell Griffen, I concur Judge, concurring. result in this case. I believe the trial court erred in evidence was free on when he admitting bond appellant Nonetheless, committed the in the crimes instant case. we agree harmless, should affirm sentence because the error is in that show that cannot he was the erroneous appellant prejudiced by admission of the evidence.
The fact that on bond in was free an unrelated case appellant when he this committed offenses in case was not relevant to matter related to his for the instant prove any sentencing charges residential theft misdemeanor To begin, it cannot be he said fact that was free on bond that was unrelated, conduct was an granted unproven aggravation relevant to his An is circumstance sentencing. aggravation any the commission of a crime that its or increases attending guilt *5 or to its adds but that is above enormity injurious consequences, the essential constituents of the crime Davis v. itself. beyond 84 179, 815
State, (1998) (affirming 962 S.W.2d 60 Ark. App. the defen- the sentencing evidence during admission of a controlled sub- dant, been convicted delivery who had sales, he was not stance, even though had made drug prior State, Ark. alsoHill v. see conduct); for prosecuted of evidence during the admission (1994) (affirming S.W.2d 275 defendant, to who had pled guilty the sentencing phase victim on a occa- rob the same had prior attempted robbery, State, and Hill v. Davis v. related conduct in supra, . Unlike the sion) had State, in which allegedly the other conduct appellant supra, he for which to the convictions not related in was any way engaged Thus, it can be said here I not see how do was sentenced. being consti- had committed forgery that the allegations appellant were unrelated Since forgery allegations tuted an aggravation. or not increase the enormity could guilt instant charges, they and misde- residential convictions for of appellant’s their theft or add to injurious consequences. meanor of property character or indicative of Nor was that fact appellant’s someone has been charged relevant. The mere fact that otherwise as relevant evidence be with a crime should blithely accepted Even character for though appellant of his sentencing purposes. crimes, to be not he is with additional presumed charged in a court of crimes until guilty those proven committing guilty tried for the unrelated charges law. He had not been thus, for those of innocence still retained presumption the instant offenses. at the time he was tried for charges sentence; Nonetheless, affirm we should agree his from the sentence because he not demonstrated has prejudice the maximum for the was below sentence felony twenty-five-year and his and was within statutory range, sentence allowable with his offense was felony. sentence for the misdemeanor merged Ark. (2002); 349 Ark. See Buckley residential 1997) 5-39-201 (a)(1) (defining Code. (Repl. 2003) 5-4-501 (a)(2)(C) as a B (Supp. Class felony); § an enhanced sentence of five to thirty years prison (providing 5-4-403(c)(2) 2003) B Ark. Code Ann. a Class felony); (Supp. run for a misdemeanor and that a sentence (requiring Therefore, demonstrate that he cannot concurrently). appellant evidence. the inadmissible by prejudiced