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Arnold v. State

Alabama Court of Criminal Appeals

December 15, 2017

Patrick Edward Arnold
v.
State of Alabama

         Appeal from Jefferson Circuit Court (CC-16-914; CC-16-915)

          KELLUM, Judge.

         Following a bench trial, the appellant, Patrick Edward Arnold, was convicted of burglary in the third degree, a violation of § 13A-7-7, Ala. Code 1975, and theft of property in the first degree, a violation of § 13A-8-3, Ala. Code 1975. The circuit court sentenced Arnold to 36 months' imprisonment for each conviction; the court split that sentence and ordered Arnold to serve 16 days in jail followed by 2 years of supervised probation. The circuit court ordered that the sentences run concurrently. The circuit court further ordered Arnold to pay $22, 698.53 in restitution, $300 to the crime victims compensation fund, and court costs.

         The following pertinent evidence was presented at the bench trial. Eyewitnesses Elvis Pettway and Raymond Humphrey testified that on August 24, 2015, Arnold was seen loading furniture onto a truck owned by the victim, William Martin, at Martin's residence. Both Pettway and Humphrey were aware that Martin had moved out of the residence and into an assisted-living facility, leaving his unoccupied house under the supervision of his daughter, Donna Key, who had been married to Arnold's father, Leland Arnold, until his death. Pettway, Martin's across-the-street neighbor, testified that Arnold approached him and asked his assistance in loading a dresser onto the truck sometime during the day. Pettway declined to help Arnold because he suffered from back problems. According to Pettway, their interaction was "quick" and ended with Arnold "politely" turning around, crossing the street, and continuing to load furniture. (R. 20.)

         Humphrey, Martin's next door neighbor, testified that when he returned from work, he learned from his neighbor, Vince Holloway, that there was "a lot of activity going on" at Martin's residence. (R. 33.) Humphrey's wife, Sharon, was a real-estate agent who had listed Martin's house for sale. Humphrey thought Sharon had sold the house, but she responded that she had not.

         Humphrey testified that he and Sharon drove over to Martin's house to investigate the situation. When they arrived, it was dark outside. After he saw Martin's truck was filled with furniture, Humphrey told Sharon to telephone the police. Humphrey approached the man he later identified as Arnold and told Arnold that he was there to check on some plumbing issues Martin was having with his sink. Arnold told Humphrey that he was "doing a lot of work" inside Martin's house, and that Humphrey should come back in a couple of days. (R. 35.) Arnold told Humphrey that he was Martin's grandson and that he knew Martin's daughter, Donna Key. At this point, Arnold had convinced Humphrey that he had permission to be at Martin's residence, so Humphrey turned around and began to walk back to his car. However, Sharon was already on the telephone speaking to police. Arnold, who was close by, overheard Sharon on the telephone and ran into Martin's house. In light of his reaction, Humphrey pulled his car in front of Martin's truck in an attempt to block Arnold's exit. When Arnold came out of the house, he entered Martin's truck, backed it up, and drove across the neighbor's yard. Humphrey pursued Arnold in his vehicle but eventually lost sight of him. Martin's truck was later found by police, abandoned.

         Sharon telephoned Key to inform her of the series of events that had transpired. When Key arrived at the scene, she told the police that the burglar might have been a handyman who had worked at her father's house in the past. Key said the handyman, Tim Vernon, had been dishonest with her in previous business interactions.

         Detective Marion Williams was assigned to investigate the burglary of Martin's residence. He testified that after receiving the report on the burglary, he telephoned Key. Key supplied Detective Williams with the name of Tim Vernon as a potential suspect. Subsequently, Detective Williams developed photographic lineups based around the physical appearances of Vernon. Later that night, however, Humphrey and Sharon recognized a photograph of the burglar on Key's Facebook social media page. The individual was Key's stepson, Arnold. The Humphreys informed Key of this fact, and Key told Detective Williams. Thereafter, Detective Williams decided there was no need to go forward with Vernon as a suspect. Instead, he developed a photographic lineup based around Arnold's driver's license photograph. He presented the photographic lineup to Humphrey and Pettway, who separately and independently identified Arnold as the burglar. Arnold was subsequently arrested.

         Austin Arnold, Arnold's cousin, testified on Arnold's behalf. Austin testified that he was with Arnold for the duration of the evening of August 24, 2015. At the time, Austin and Arnold lived together with their grandparents. According to Austin, Arnold came home from band practice at 5:30 p.m. Thereafter, Austin and Arnold went out to buy dinner for their grandparents. They brought food home and ate with their grandparents at around 6:30 p.m. Austin testified that after dinner he and Arnold relaxed in the basement together, watching Netflix, an Internet streaming service, and playing video games. A few hours later, at around 10:00 p.m., they went to a Planet Fitness owned gym and worked out for about an hour and a half. To corroborate this testimony, Arnold proffered evidence that, at 10:06 p.m. on August 24, 2015, his Planet Fitness card was electronically swiped at the Homewood Planet Fitness location. Moreover, Austin's name appeared on the Planet Fitness guest log for the same night.

         Arnold also took the stand, reiterating much of Austin's earlier testimony. Arnold testified that he and Key were never close and that Key grew even more distant following the death of his father and Key's husband.

         After both sides rested, the circuit court found Arnold guilty of burglary in the third degree and theft of property in the first degree. Arnold filed a timely motion for new trial. Following a hearing, the circuit court denied the motion. This appeal followed.

         I.

         Arnold first contends that the circuit court abused its discretion when it denied him youthful-offender status without first holding a hearing as required by the Youthful Offender Act, § 15-19-1 et seq., Ala. Code 1975. Specifically, Arnold contends that the circuit court was "required to examine Arnold to a degree sufficient to enable the trial court to make an intelligent determination as to whether, in its discretion, Arnold was eligible for treatment as a youthful offender." (Arnold's brief, p. 25.)

         The record indicates that when the case was initially called for trial on November 15, 2016, the State sought a continuance. At that time and while on the record, Arnold informed the court that he wanted to make application for treatment as a youthful offender. Specifically, Arnold wanted to put his motion "on the record." (R. 6.) Noting that no "paper application" had been made for youthful-offender treatment, the circuit court denied Arnold's oral motion for treatment as a youthful offender and set the case for trial. (R. 6.) At the conclusion of trial, Arnold moved for a new trial arguing, in part, that the circuit court erred by denying his request for youthful-offender status without holding a hearing first.

         "'Review on appeal is restricted to questions and issues properly and timely raised at trial.'" Ex parte Coulliette, 857 So.2d 793, 794 (Ala. 2003) (citing Newsome v. State, 570 So.2d 703, 717 (Ala.Crim.App.1989)). The rules of preservation apply equally to constitutional issues. See D.W.L. v. State, 821 So.2d 246, 248 (Ala.Crim.App.2001)("'[C]onstitutional issues must first be correctly raised in the trial court before they will be considered on appeal.'" (quoting Hansen v. State, 598 So.2d 1, 2 (Ala.Crim.App.1991))). "'An issue raised for the first time on appeal is not subject to appellate review because it has not been properly preserved and presented.'" Coulliette, 857 So.2d at 794 (citing Pate v. State, 601 So.2d 210, 213 (Ala.Crim.App.1992)). "[T]o preserve an issue for appellate review, it must be presented to the trial court by a timely and specific motion setting out the specific grounds in support thereof." McKinney v. State, 654 So.2d 95, 99 (Ala.Crim.App.1995)(citation omitted).

         "[A] motion for a new trial or a motion for a judgment of acquittal is not sufficient to preserve the issue where no timely objection was made at [trial]." Newsome v. State, 570 So.2d at 717. See also Blanton v. State, 886 So.2d 850, 876 n. 9 (Ala.Crim.App.2003)(noting that, absent a timely and sufficient objection at trial, a motion for a new trial does not preserve alleged error for appellate review); Hamrick v. State, 548 So.2d 652, 655 (Ala.Crim.App.1989)("The grounds urged for a new trial must ordinarily be preserved at trial by timely and sufficient objections."). Because Arnold did not object to the circuit court's failure to hold a hearing on his application for youthful-offender status before trial or during trial but instead raised his objection in a motion for new trial, Arnold's objection was untimely and was not preserved for appellate review.

         II.

         Arnold next contends that the circuit court erred by excluding as irrelevant evidence of a will dispute between Donna Key and the Arnold family. Arnold contends that the evidence was relevant to impeach Key for bias, prejudice, and/or interest.

         The record indicates that during cross-examination of Key, Arnold asked Key whether there was animosity between her and Arnold's family over the probate of her late husband's estate. The State objected to the question on the basis of relevancy. The circuit court initially overruled the State's objection, but sustained the objection shortly thereafter.

         The admission or exclusion of evidence is a matter within the sound discretion of the circuit court. Taylor v. State, 808 So.2d 1215 (Ala. 2001). "The question of admissibility of evidence is generally left to the discretion of the trial court, and the trial court's determination on that question will not be reversed except upon a clear showing of abuse of discretion." Ex parte Loggins, 771 So.2d 1093, 1103 (Ala. 2000).

"To be competent and admissible, evidence must be relevant -- that is, evidence must tend to prove or disprove the issues before the jury. Rule 401, Ala. R. Evid. The determination of the relevancy and admissibility of evidence rests largely in the sound discretion of the trial judge. The trial judge is obliged to limit the evidence to that evidence that would be necessary to aid the fact-finders in deciding the issues before them, and to preclude evidence that is too remote, irrelevant, or whose prejudice outweighs its ...

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