Christian v. State , 6 Ark. App. 138 ( 1982 )

Tom Glaze, Judge.

Appellant appeals from a jury verdict which found him guilty of theft by deception. He contends the trial court erred when it (1) denied his motion for continuance, (2) restricted his cross-examination of the victim and a police officer, and (3) determined the evidence sufficient to sustain a conviction. Our study of the record reflects the trial court was correct in each instance, and therefore, we affirm.

I. MOTION FOR CONTINUANCE

Appellant was charged jointly with co-defendant, James Guy, and they were to be tried together on January 7, 1982. However, Guy failed to appear on the morning of the trial, and appellant’s counsel moved for continuance. In support of his motion, counsel alleged that he expected Guy’s testimony to establish an alibi for the appellant and anticipated that Guy would take all the liability for the charges filed in the case. The court denied the motion. It was again denied when counsel for appellant renewed his motion, stating the same grounds immediately before the trial commenced.

The trial court’s action will not be reversed absent a clear abuse of discretion amounting to a denial of justice, and the burden is on appellant to demonstrate such abuse. Brown v. State, 5 Ark. App. 181, 186, 636 S.W.2d 286 (1982). It is also settled law that in the absence of a showing of prejudice, we cannot say the refusal of a continuance is error. Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977). See also, Finch v. State, 262 Ark. 313, 556 S.W.2d 434 (1977).

In considering appellant’s contention, we find it significant to mention early that appellant had signed a written statement which clearly reflected his participation with Guy in their theft by deception scheme. This statement was admitted into evidence without objection at appellant’s trial. Throughout the two-page statement, appellant related his knowledge and involvement in the scheme, which included his presence at the place and time the crime was committed. In brief, appellant admitted in the statement that Guy bought two old televisions from a rental shop. Guy later “wrapped” them so they appeared as new television sets. The next day, appellant and Guy loaded the sets in appellant’s car, and they proceeded to a welding shop where Guy unloaded one of the televisions and sold it. The statement further reflected that the only thing appellant received from Guy for “taking him around” was a tank of gas. Appellant admitted that two other old televisions were bought and sold as new in the same manner. In addition to making a statement, appellant also testified at trial. He admitted that he was with Guy when the crime occurred, but he denied any culpable knowledge of the theft “scam.” Nevertheless, the basis of appellant’s motion to continue was that Guy’s testimony would establish an alibi for appellant, i.e., a defense which is commonly understood to place a defendant at another place at the time of the commission of the alleged offense. See Doyle v. State, 166 Ark. 505, 507, 266 S.W. 459, 460 (1924), and Black’s Law Dictionary, 66 (5th ed. 1979). If the establishment of an alibi was the true basis of appellant’s motion to continue, it is difficult to surmise how Guy’s failure to testify prejudiced appellant in view of his written statement and in-court testimony, admitting he was with Guy when the crime was committed.

Perhaps appellant’s counsel misstated what he intended to prove through Guy’s testimony, and it was not the establishment of an alibi at all. In this vein, appellant may have intended to show that although appellant was with Guy at all relevant times, appellant was unaware that Guy was engaging in criminal conduct. Of course, we are forced to speculate in considering what appellant expected to show by Guy’s testimony because he failed to proffer any testimony or evidence which would serve as a factual basis to exculpate appellant and his role in the crime.

Since appellant proffered no testimony, it is justas easy to speculate that he did not know what testimony Guy would give and, indeed, had no real assurance that Guy would testify at all. After all, appellant’s written statement that recited his own involvement in the theft scheme also clearly charged that Guy was the one who initiated the scheme. On this same point, appellant never established the actual reason Guy failed to appear at the trial, a fact which could easily have been shown, if not at trial, through a motion for a new trial.

As we noted earlier, we find it significant that this is not a situation in which the appellant had proclaimed his innocence throughout the case. Instead, appellant gave the State an incriminating statement which served as the single most damaging piece of evidence in support of the charges filed against him. For that reason alone, it was important for him to show any other evidence upon which he relied to support his continuance motion and claim of prejudice. Appellant should have given the court the evidence that he expected to offer through Guy’s testimony. Only then would the court be in the position to properly weigh such proffered evidence in light of appellant's own self-incriminating statement and the other evidence that was available to prove the charges against him.

Appellant was not prevented from offering testimony that he honestly expected to elicit from Guy if he had been available to testify at the trial. It was his burden to do so, and he failed. Because of this fact, the trial court was in no position to weigh the prejudicial impact of Guy’s absence. Consequently, we are unable to say it abused its discretion in denying appellant’s motion to continue.

II. RESTRICTION OF CROSS-EXAMINATION OF VICTIM AND A POLICE OFFICER

Appellant first complains that the trial court impermis-sibly limited his cross-examination of the complaining witness, Mike Cole. Cole purchased one of the televisions for $100 upon the representation it was new. During his cross-examination, he testified that he had recently purchased a new television sometime after his transaction with Guy and appellant. When asked how much he paid for the new set, the court sustained the State’s objection that the question was not relevant. Although appellant failed to state to the court why he believed the question was relevant, we can only assume he was attempting to show that Cole knew the price of a new television, and he was not misled or deceived in his purchase from Guy and the appellant. Even so, we find no merit in his argument. First, nowhere in the record do we find any evidence which establishes that the television purchased from Guy and appellant was comparable to the one Cole purchased later.¹ Secondly, and more importantly, other testimony elicited from Cole on cross-examination established not only that he believed the television he purchased from Guy and appellant was at a bargain price, but also that he had an idea that the television might have been stolen. In spite of this testimony, the jury convicted appellant of theft by deception. Since it is not an abuse of discretion to interfere with or limit cross-examination of a witness when it appears the matter has been developed sufficiently and presented clearly to the jury, we find no merit in appellant’s argument on this point. See McCorkle v. State, 270 Ark. 679, 607 S.W.2d 655 (1980).

Appellant also contends that his cross-examination was unduly restricted when he asked the police officer, who took appellant’s written statement, if he believed appellant when “he said he didn’t receive anything.” The trial court sustained the State’s objection based on irrelevancy. The court’s ruling was correct for at least two reasons: (1) it is the function of the trier of fact to determine what portions of the statement are to be believed and what portions are to be discredited. Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979); and (2) the question was argumentative and called for the witness to state a conclusion as to appellant’s belief. Dillard v. State, 260 Ark. 743, 543 S.W.2d 925 (1976).

III. EVIDENCE SUFFICIENT TO SUSTAIN CONVICTION

We first note appellant’s argument that the trial court erred in denying appellant’s motion for directed verdict at the close of the State’s case-in-chief. This argument is unavailing because his motion was not renewed at the conclusion of all the evidence and he introduced evidence (including his own testimony) after the denial of his motion. See Chandler v. State, 264 Ark. 175, 569 S.W.2d 660 (1978), and Wiley v. State, 268 Ark. 552, 594 S.W.2d 57 (Ark. App. 1980). Thus, as we were required to do in Wiley, we now judge the sufficiency of the evidence on the entire record. In doing so, we view the evidence in the light most favorable to the appellee. Pope v. State, 262 Ark. 476, 557 S.W.2d 887 (1977).

Mike Cole testified that on June 16, 1981, he was at his place of employment and heard from other employees that there were two men parked in his company’s driveway, and that they had some televisions for sale. One of the men sat in a car while the other was talking to employees about the televisions. Cole said that the man related the televisions were “leftover freight” from a Tulsa truck and that he wanted $150 a piece for them. Cole unloaded the televisions from the men’s car after the man sitting in it backed the car near a company service truck. After Cole and the other employee paid their money, the two men left. Cole then unwrapped the televisions only to find two “old, dilapidated” televisions. He contacted the Fort Smith Police Department and gave Detective James Davis a description of the two men and what occurred. On June21,1981, appellant and Guy were arrested, and on the same day, appellant gave the police his written statement of his involvement in the crime.

Since we related the relevant text of appellant’s statement in Point I, it is unnecessary to repeat those portions. Suffice it to say, appellant’s statement established his connection with the crime which occurred on June 16, and though he denied receiving anything from Guy in return except a tank of gas, appellant’s statement clearly related his knowledgeable participation in the theft scheme. While it is true the appellant’s version at nial differed from his prior statement and Detective Davis’ testimony, the resolution of those differences was a matter for the jury.

Affirmed.

Cooper, J., dissents.

1 Appellant later asked Cole if there was a difference in the two televisions, but the court sustained the State’s relevancy objection and that ruling is not argued on appeal.