FROM THE CRAIGHEAD COUNTY CIRCUIT COURT, EASTERN DISTRICT
[NO. 16LCR-15-18] HONORABLE JOHN N. FOGLEMAN, JUDGE
C. Self, for appellant.
Rutledge, Att'y Gen., by: Rebecca Bailey Kane, Ass't
Att'y Gen., for appellee.
F. VIRDEN, Judge
Craighead County jury convicted appellant George Dewayne
Guthrie of residential burglary and theft of property, and he
was sentenced as a habitual offender to thirty years'
imprisonment. Pursuant to Anders v. California, 386
U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(k),
Guthrie's counsel filed a motion to withdraw on the basis
that there is no merit to an appeal. In Guthrie v.
State, 2017 Ark.App. 383 (Guthrie I), this
court denied counsel's motion to withdraw and ordered
rebriefing due to deficiencies in the abstract. Guthrie's
counsel has filed another motion to withdraw and a
substituted brief listing all adverse rulings and explaining
why there are no nonfrivolous issues for appeal. Guthrie
filed pro se points for reversal the first time this case was
before us; he was notified and again given the opportunity to
file pro se points. He did not file any additional points,
which indicates to us that he has elected to stand on his
original pro se points for reversal. See, e.g.,
Reynolds v. State, 2017 Ark.App. 397; Lenderman
v. State, 2017 Ark.App. 1. We affirm Guthrie's
convictions and grant defense counsel's motion to
Summary of Facts
was caught on camera breaking into a neighbor's cabin. An
investigator with the Craighead County Sheriff's Office,
with whom Guthrie was well acquainted, brought him in for
questioning. The investigator told Guthrie that he was being
questioned about a breaking or entering. Guthrie eventually
admitted stealing beer, trash bags, and Q-tips. The State
initially charged Guthrie with breaking or entering and theft
of property but later amended the information to charge him
with residential burglary and theft of property and to allege
that Guthrie should be sentenced as a habitual offender.
Discussion of Adverse Rulings
discusses the trial court's denial of Guthrie's
motion to suppress his custodial statement; the denial of
Guthrie's motions for directed verdict; the denial of
Guthrie's motion for a mistrial; the implicit overruling
of Guthrie's objection during closing argument; the
sustaining of the State's objection to Guthrie's
request for sentencing by the court; and the denial of
Guthrie's request for an appeal bond. The latter two
rulings were the ones this court identified as having been
omitted from counsel's previous discussion of all adverse
moved to suppress his custodial statement, arguing that it
had been induced by the investigator's
"promise" that he would be charged with breaking or
entering and theft of property, and not residential burglary
and theft of property. A statement induced by a false promise
of reward or leniency is not a voluntary statement. Fuson
v. State, 2011 Ark. 374, 383 S.W.3d 848. The trial court
denied the motion to suppress, finding that the investigator
did not make any promises about the charges Guthrie would
face, that the investigator only gave his opinion about the
possible charges considering the facts, and that it was up to
the prosecutor to determine what charges would be brought.
trial court denied Guthrie's motion for directed verdict
on residential burglary. Ark. Code Ann. § 5-39-201(a)(1)
(Supp. 2017). Guthrie had argued that the cabin was not an
"occupiable structure" as defined by Ark. Code Ann.
§ 5-39-101(8)(A)(ii) because the cabin did not have
running water at the time of Guthrie's entry. The owner,
however, testified that he and his grandchildren use the
cabin for sleeping and eating. Even though someone had stolen
the copper pipes, and therefore the cabin had no running
water for a time, the cabin was the type of structure that is
capable of being occupied by people and was being used for
overnight accommodation. Julian v. State, 298 Ark.
302, 767 S.W.2d 300 (1989). The trial court also denied
Guthrie's motion for directed verdict as to theft of
property. Ark. Code Ann. § 5-36-103(b)(4)(A). Guthrie
argued that the evidence concerning the value of the stolen
items was not "concrete enough" for a jury, but he
acknowledged that there had been some evidence of value.
trial court denied Guthrie's motion for a mistrial when
the jury returned with a guilty verdict for both residential
burglary and the lesser-included offense of breaking or
entering. See Smith v. State, 2011 Ark.App. 162. A
defendant may be prosecuted for more than one offense, but he
or she may be convicted of only one. Meadows v.
State, 360 Ark. 5, 199 S.W.3d 634 (2004); Hill v.
State, 314 Ark. 275, 862 S.W.2d 836 (1993). When a jury
finds a defendant guilty of both a lesser and greater
offense, the court should enter a judgment of conviction for
only the greater offense. Id. Here, Guthrie was
convicted of the greater offense-residential burglary.
counsel objected during the prosecutor's closing
argument, stating that the prosecutor had mischaracterized
Guthrie's argument; however, the objection was not ruled
on by the trial court and was not pursued by defense counsel
at trial. It was Guthrie's burden to obtain a ruling, and
his failure to secure a ruling constitutes a waiver,
precluding its consideration on appeal. Walker v.
State, 301 Ark. 218, 783 S.W.2d 44 (1990).
trial court sustained the State's objection to
Guthrie's request to have the court fix sentencing, as
opposed to the jury. Arkansas Code Annotated section
5-4-103(a) (Repl. 2013) provides that if a defendant is
charged with a felony and is found guilty of an offense by a
jury, the jury shall fix punishment. The court shall fix