Chаrles SAVAGE, Jr., Appellant v. STATE of Arkansas, Appellee
No. CR-16-838
Court of Appeals of Arkansas, DIVISION IV.
Opinion Delivered April 26, 2017
2017 Ark. App. 261
Robinson also argues that there was no evidence of potential harm in this case. Under Arkansas law, the circuit court is required to consider only the potential future harm to the juvenile‘s safety that might result if she were returned to appellant‘s custody. The circuit court was not required to find that the juvenile‘s return to Robinson would result in actual harm, nor was the court required to identify a specific potential hаrm.
There is sufficient evidence in the record to show that the court considered the effect on the health and safety of the child which would be caused by a return to the custody of Robinson. The evidence presented, including Robinson‘s own admission, showed that she continued to use drugs at the time of the permanency-planning hearing and did not have stable employment. At the termination hearing, Robinson testified that she still did not have stable employment and was dependent on her family. Specifically, when asked if it would be fair to say that she used [drugs] on and off throughout the case and continued to do so, she answered in the affirmative. Robinson‘s continued use of drugs is sufficient to show potential harm to the child. See Tillman v. Ark. Dep‘t of Human Servs., 2015 Ark. App. 119, 2015 WL 831629; Allen v. Ark. Dep‘t of Human Servs., 2011 Ark. App. 288, 384 S.W.3d 7.
The circuit court considered the evidence and found that, looking at the totality of the circumstances, there would be potential harm in returning N.B. to Robinson. The court also found that adoption by means of terminatiоn of parental rights was the appropriate permanency plan and in the juvenile‘s best interest. Because there was sufficient evidence of both adoptability and potential harm, we hold that the circuit court‘s bеst-interest finding is not clearly erroneous. We are not left with a definite and firm conviction that a mistake was made. As such, we affirm.
Affirmed.
Hixson and Murphy, JJ., agree.
Leslie Rutledge, Att‘y Gen., by: Brooke Jackson Gasaway, Ass‘t Att‘y Gen., for appellee.
LARRY D. VAUGHT, Judge
Charles Savage, Jr., appeals his conviction by an Ashley County jury of theft of property and criminal mischief in the first degree. On appeal, Savage challenges the sufficiency of the evidence supporting his theft-of-property conviction, and he argues that the verdict form indicates that he was erroneously convicted of, and sentenced for, theft by receiving when he had been charged with theft of property. We affirm on both points.
At trial, Amondo Mondragon testified thаt he was employed as the manager of
The four-wheeler tracks stretched across the field from the pivot to the pavement in front of Savage‘s homе. There were also four-wheeler tracks in Savage‘s yard leading to an enclosed shed. When police asked Savage if he owned a four-wheeler, he initially only showed them the two in the yard (which did not match the tracks), but eventually another four-wheeler was discovered in the shed that did match the tracks. Savage then explained that he had forgotten about this four-wheeler because it would not run, but when asked to demonstrate that it would not start, he intentionally shifted it into gear before attempting to turn the key, thereby preventing it from starting. When an officer shifted it back to neutral, the four-wheeler started without any problem. Savage then claimed that, although it would start, it would not continue tо run, but when the officers tried to leave it running to test that statement, Savage turned it off. The tread on the four-wheeler‘s tires matched the tracks going to the pivot.
Officers then searched his property with his consent and found rust residue in the trunk of his vehicle. This rust residue was similar to residue from the wires on the pivot. Officers also found seven spots on the ground around his home that showed signs of having a heavy, rolled-up object on top of them. Seven pieces of wire were taken from the pivot.
Savage, who regularly scraps metal for income, was asked by officers if he had recently sold any copper to Livingston‘s Scrap Metal, and he said he had not. However, both a receipt аnd video surveillance demonstrated that Savage had recently sold approximately 259 pounds of copper at Livingston‘s. Savage acknowledged lying to the officers but claimed that he did so because an officеr had accused him of selling drugs, which angered him.3 Savage also claimed that he had received some scrap wire from the mayor but that after burning it in his yard, it was stolen. Savage was arrested and charged with the theft of the copрer wire; after being arrested, Savage told his parole officer that he (Savage) had “fed up.”
Savage was convicted on both counts submitted to the jury. The preprinted verdict form signed by the jury erroneously stated that he had been found guilty of “theft by receiving,” although he had been charged with theft of property, and the jury had been instructed on theft of property. At no other time during the trial was theft by receiving mentioned. Neither the State nor the defense raisеd any objection
Savage filed a timely notice of appeal. On appeal, he argues that the evidence against him was insufficient to support a conviction for theft of property4 and that he had been erroneously convicted and sentenced for theft by receiving, for which he was not charged.
At trial, Savage moved for a directed verdict, arguing that the theft-of-property statute,
When we rеview a challenge to the sufficiency of the evidence, we “view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict.” McBride v. State, 99 Ark. App. 146, 148, 257 S.W.3d 914, 916 (2007). The test is whether the verdict is supported by substantial evidence, direct or circumstantial. Stewart v. State, 362 Ark. 400, 403, 208 S.W.3d 768, 770 (2005).
We are satisfied that the State sufficiently proved that Savage exercised unauthorized control over the pivot, which was the property of another. There was ample evidence at trial that the pivot was in the possession, control, and use of Larry Pieroni Farms when the wires were stolen. Mondragon testified that he managed the daily operations of the farm and reported directly tо Pieroni. He discovered the damaged pivot on making a routine inspection of the property and immediately reported it to Pieroni (indicating that Mondragon, the farm manager, neither expected the wire to be rеmoved nor understood the removal to have been authorized), and Pieroni told him to call the sheriff‘s office (indicating that Pieroni also did not view the wire removal as having been authorized). Mondragon also testified that he “cаlled people to fix the pivot.” The fact that Larry Pieroni Farms immediately undertook the expense of repairing the pivot further indicates that it owned and operated the pivot, needed it to be in working order, and had not intended it to be rendered unusable by removal of the copper wiring. Finally, Savage testified at trial that he did not know the location of the field where the pivot had been when the wires were stolen, indicating that he neither owned the pivot nor exercised authorized control. Based on the totality of the evidence presented at trial, viewed in the
Savage also claims that he was erroneously convicted of, and sentenced for, theft by receiving, despite the fact that he was actually charged with theft of property. The preprinted jury verdict form, signed by the jury, erroneously states “theft by receiving” rather than “theft of property.” However, Savage never objected to the use of the verdict form at trial. It is well-settled law that a party cаnnot challenge a verdict form on appeal unless he or she raised the issue at trial. E.g., Bonds v. State, 310 Ark. 541, 546, 837 S.W.2d 881, 884 (1992). In Adams v. State, the Arkansas Supreme Court stated that “the failure to make a contemporaneous objection to an irregularity of a jury verdiсt constitutes a waiver of the irregularity.” 2009 Ark. 375, at 6, 326 S.W.3d 764, 768. Although our courts have recognized that an objection to a verdict form may be raised at the time the verdict is rendered, at the time of sentencing, or by motion for a new trial, Ply v. State, 270 Ark. 554, 560, 606 S.W.2d 556, 559 (1980), Savage never raised the issue below.
Moreovеr, while it is true that the jury‘s verdict form for the guilt phase of the trial erroneously stated “theft by receiving,” the circumstances as a whole reveal that this was clearly a clerical error and that Savage was convicted of, аnd sentenced for, the crime of theft of property. At no other point in the trial was “theft by receiving” mentioned. Savage was charged with theft of property, the closing arguments and jury instructions clearly addressed the elements оf theft of property, the jury signed a sentencing-phase verdict form that stated they had convicted Savage of theft of property, and the defense polled the jury, confirming that every member had in fact reached that vеrdict. Based on the charges, the evidence, the jury instructions, the sentencing phase verdict form, and the polling of the jury, the totality of the circumstances in this case clearly indicates that the minor clerical error on thе guilt-phase verdict form did not confuse or mislead the jury. Curtis v. State, 279 Ark. 64, 67, 648 S.W.2d 487, 489 (1983). We affirm.
Affirmed.
Gruber, C.J., and Gladwin, J., agree.