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Clark v. State

Court of Appeals of Arkansas, Division I

March 4, 2015

KIRK ALAN CLARK, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 306

APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT. NO. CR 2014-491-1. HONORABLE WILLIAM A. STOREY, JUDGE.

Charlene Davidson Henry, for appellant.

Dustin McDaniel, Att'y Gen., by: Lauren Heil, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Judge. VIRDEN and GLOVER, JJ., agree.

OPINION

Page 307

RITA W. GRUBER, Judge

On November 25, 2013, Kirk Alan Clark was arrested for breaking or entering a vehicle in a parking lot at the University of Arkansas in Fayetteville. After setting an initial trial date, the circuit court entered an order granting Clark's motion for a continuance and resetting trial for March 11, 2014. On the morning of March 11, the jury was dismissed and an arrest warrant was issued against Clark for failure to appear. The breaking-or-entering and failure-to-appear charges were subsequently joined for trial. Clark filed a motion to sever offenses, which the circuit court denied. Clark was tried by a jury and was convicted of both offenses. He was sentenced as a habitual offender to 180 months' imprisonment for the breaking-or-entering charge and to 36 months' imprisonment for the failure to appear, the sentences to be served concurrently.

Clark appeals, contending that the circuit court abused its discretion in refusing to grant his motion to sever the failure-to-appear and breaking-or-entering charges for trial; erred by denying his motions for a directed verdict on each charge; erred in admitting into evidence State's Exhibits Nos. 3 and 4 as relevant to failure to appear; and erred in refusing his proffered jury instruction that State's Exhibits Nos. 3 and 4 should not be considered as proof of guilt of failure to appear. We reverse the denial of the motion to sever and remand for new trial. We reverse and dismiss the conviction for failure to appear, rendering the remaining points moot.

Denial of Motions for Directed Verdict

In order to protect Clark's rights against double jeopardy, we consider his sufficiency arguments before addressing alleged trial errors. Garner v. State, 355 Ark. 82, 131 S.W.3d 734 (2003). Clark contends that the circuit court erred by denying his motions for a directed verdict on breaking or entering and on failure to appear.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Kelley v. State, 75 Ark.App. 144, 145, 55 S.W.3d 309, 311 (2001). Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture and is sufficient to compel a conclusion one way or the other. Id. at 146, 55 S.W.3d at 311. It is not the appellate court's place to try issues of fact; we simply review the record for substantial evidence to support the jury's verdict. Id. When the sufficiency of the evidence is challenged on appeal, we view the evidence in the light most favorable to the State and consider only evidence that supports the conviction. Pruitt v. State, 2011 Ark.App. 754, at 3.

The State's evidence included testimony by University of Arkansas Police Sgt. Benjamin Velasco and Cpl. Gabriel Golden, testimony by student Brandon McKenzie, and Exhibits Nos. 3 and 4. Sgt. Velasco testified that at lunchtime on November 25, 2013, he was conducting surveillance on campus parking lot No. 56 because of recent lunchtime break-ins to vehicles there; particularly, someone would reach in to unlock " Jeep type vehicles with soft tops"

Page 308

after their tops were cut. He observed Clark get off a bus, walk " straight for a [student's] Jeep," open its unlocked door, lean into the Jeep, and begin going through the console and glove box. Clark had on his person two dingy and battered cell phones and a knife that, according to Sergeant Velasco, " looked like a little meat cleaver . . . the type you could use to cut tops off vehicles." Cpl. Gabriel Golden, who had received a call to come to the parking lot, testified that Clark had a fixed-blade knife. At the scene, Clark stated to Sergeant Velasco that " a guy named Bill" had told Clark to get Bill's phone out of the car. The Jeep's owner, Brandon McKenzie, testified at trial that after campus police phoned him at lunchtime on November 25 to identify property, he saw that his Jeep Wrangler " had been rifled through." He ...


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