DIVISION III

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-790

July 5, 2001

ORLANDO ANTHONY AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR99-3258]

V. HON. JOHN LANGSTON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Orlando Anthony was convicted of the felony offense of residential burglary and the misdemeanor offense of theft of property. Anthony was also found to be a habitual offender with two prior convictions. The trial judge merged appellant's misdemeanor conviction into his burglary conviction, and sentenced him to eighty-four months of imprisonment in the Arkansas Department of Correction. His attorney filed a motion to be relieved as appellate counsel, arguing that an appeal in the case would be without merit. Although appellant was afforded an opportunity to file pro se points for reversal, he failed to respond. Likewise, the State did not file a brief. We affirm appellant's conviction and grant counsel's motion to withdraw.

Factual and Procedural History

The State filed a felony information on September 8, 1999, alleging that on August 4, 1999, appellant entered the residence of 1423 South Commerce and remained there unlawfully for the purpose of committing theft of property. On February 17, 2000, a bench trial was held on the matter. As part of its case-in-chief, the State offered the testimony of Fred Black, Vaun Holbert, Robert McNeely, David Goodson, and Darrell Casteel.

Black testified that he was working in the area of 1423 Commerce with a City of Little Rock tree-removal crew on the morning of August 4, 1999, when a person approached the group and asked if anyone wanted to buy any televisions, stereos, microwaves, or VCRs. Black and other members of the crew said no. About twenty minutes later, Black saw the same person exit the back door of 1423 Commerce carrying a microwave. Later, police arrived and Black told the officers what he observed. The officers returned with appellant in the police car and asked Black if the person in the car was the person that he saw. Black identified appellant to the police and again identified appellant at trial.

Vaun Holbert, the resident of 1423 Commerce, testified that she had a microwave, an air conditioner, a TV, a VCR, and a watch taken from her home on August 4, 1999. Holbert testified that her home was ransacked and estimated the value of the stolen property at $650. She stated that she did not know appellant and did not give him permission to be in her home.

The State also presented the testimony of three members of the Little Rock Police Department. Officer Robert McNeely testified that he received a call of a theft-in-progress at the corner of 15^th and Commerce. Black informed McNeely that someone ran from the back door of the residence, and gave McNeely a description of the perpetrator. With theassistance of a canine unit, McNeely and other officers eventually located appellant in a crawl space beneath an abandoned house at 1414 Park Lane, which was directly behind 1423 Commerce. Officer McNeely testified that he recovered a TV set, VCR, and a crystal clock south of where appellant was found. After the officers pulled appellant from beneath the vacant house, they placed him in a patrol unit and took him back to the area where Black and others were working. There, Black identified appellant as the person that he saw exiting 1423 Commerce. Officer David Goodson, with the canine unit, corroborated McNeely's testimony. Detective Darrell Casteel also testified that he was the lead investigator in the case and that he returned a Panasonic TV, two watches, earrings, and a crystal clock to Holbert after she was able to identify the property.

The State rested and counsel for appellant moved for a directed verdict. After the trial court denied the motion, appellant testified. Appellant verified that he was arrested after he was found under a home. He testified that at the time of his arrest he worked for Staples, and that he had paid someone to take him to work on the date of the incident, but left the person's car after that person got into a confrontation with gang members. After the confrontation escalated, appellant ran off and hid beneath 1414 Park Lane. He testified that he never entered 1423 Commerce and did not take property from Holbert's residence. Appellant confirmed that he had prior convictions for burglary, but testified that the convictions were fifteen or twenty years ago.

Counsel for appellant rested and renewed his motion for a directed verdict, which the court denied. After arguments, the court found appellant guilty of residential burglary and misdemeanor theft of property. It also decided to adjudge appellant a habitual offender withmore than one prior felony conviction and to subject him to a higher range of punishment. Although counsel for appellant asked the court to consider allowing appellant to stay out on bond pending sentencing, the court denied counsel's request.

On May 5, 2000, an appeal bond hearing was held. Counsel for appellant told the court that there was minimal likelihood that appellant would flee, given the fact that he had a substantial number of family members in the area, that he had a job lined up, and that there was no history of failure to appear. The court denied appellant's request. The court noted for the record that it would merge appellant's misdemeanor theft conviction into his conviction for residential burglary. It next observed that appellant had petitioned for the court to relieve his counsel and appoint new counsel to file his appeal. The court ruled that it lacked authority to grant appellant's request because an appeal had been filed.

Analysis

Counsel for appellant now files a motion to withdraw, accompanied by a brief in support, pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court. The brief references everything in the record that might arguably support an appeal and the reasons why counsel asserts that no adverse ruling could serve as a basis for meritorious appeal. We agree with counsel and now discuss each adverse ruling.

Motion for Directed Verdict

Appellant's first adverse ruling concerns his motion for directed verdict. At trial, his counsel questioned the sufficiency of the evidence regarding the residential burglary due to the lack of sufficient identification. Counsel for appellant also questioned the sufficiencyof the evidence regarding theft of property alleging that there was no evidence that appellant took the property or was in possession of the property without authority.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). To determine whether the evidence is sufficient to sustain a conviction, we consider whether the evidence is substantial. See id. Substantial evidence is circumstantial or direct evidence that is forceful enough to compel a conclusion without resort to speculation or conjecture. See Lindsey v. State, 68 Ark. App. 70, 3 S.W.3d 346 (1999). Circumstantial evidence must exclude all other reasonable hypotheses consistent with innocence and demonstrate an accused's guilt. See id. It is permissible for us to consider only evidence that supports a verdict of guilt, including improperly admitted evidence, without weighing evidence that supports the verdict against evidence that favors an accused. See Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). See also Hicks, supra.

Witness credibility is a matter for the trier of fact, who is at liberty to accept as true all or part of a witness's testimony, to resolve. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). This rings true for identification testimony, and a witness's unequivocal testimony that identifies the accused as the perpetrator will suffice to sustain a conviction. See Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993). Thus, issues concerning inconsistencies in witness testimony, witness credibility, and which witness to believe, lie within the sole province of the trier of fact. See Ashe, supra.

Residential burglary occurs when a person enters or remains unlawfully in an occupiable residential structure of another with the purpose of committing an offensepunishable by imprisonment. See Ark. Code Ann § 5-39-201 (Repl. 1997). Criminal intent is not presumed once the State proves illegal entry. See Forgy v. State, 302 Ark. 435, 790 S.W.2d 173 (1990). However, the State may demonstrate that an individual possessed the purpose to commit a crime through circumstantial evidence. See id.

Class C misdemeanor theft of property is statutorily defined as knowingly taking or exercising unauthorized control over the property of another valued at $500 or less. See Ark. Code Ann. § 5-36-103 (Repl. 1997). The State succeeds in demonstrating theft when it presents evidence that property is missing, that the accused had the opportunity to take the property, and that no one else had the opportunity. See Green v. State, 269 Ark. App. 953, 601 S.W.2d 273 (1980).

Viewing the facts in the instant case in a light most favorable to appellant's conviction, we hold that the State met its burden of proving that substantial evidence existed to convict appellant of residential burglary. First, the State provided the eyewitness testimony of Black, who testified that he observed appellant twice. While Black's description of appellant to the police was not an exact identification of appellant,1 Black unequivocally testified at trial that he had no doubt that appellant was the man he observed on August 4, 1999. Also, Holbert testified that her home was ransacked, that several items were missing, and that she did not give appellant permission to enter her home or to take her property. In addition, appellant was found hiding in the crawl space of an abandoned homelocated directly behind Holbert's home. The trial judge, acting as the finder of fact, was not required to believe appellant's explanation as to why he was hiding under the house.

The trial court merged appellant's misdemeanor theft of property conviction into his felony residential burglary conviction, and did not impose a sentence for theft of property. The record indicates that substantial evidence existed to convict appellant of misdemeanor theft of property. An eyewitness testified that he saw appellant coming out of 1423 South Commerce, carrying what appeared to be a microwave. Ms. Holbert testified that several items were missing from her home, including a microwave. Also, near the time of the incident, appellant was discovered hiding beneath a home located directly behind the one that was burglarized. No one else was seen in the neighborhood. These facts are sufficient to sustain appellant's conviction for misdemeanor theft of property.

Denial of Bond Pending Sentence and Bond Pending Appeal

Next, the trial court denied appellant's request to remain free on bond pending his sentencing hearing and for an appeal bond. However, our law is settled that a trial court's decision to deny bond cannot serve as grounds to reverse a valid conviction. See Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984). See also Strauser v. State, 255 Ark. 665, 501 S.W.2d 780 (1973).

Imposition of Seven-Year Sentence Under Habitual Offender Sentencing Guidelines

Residential burglary is a Class B felony. See Ark. Code Ann. § 5-39-201(a)(2) (Repl. 1997).2 A person convicted of a Class B felony who was previously convicted of more thanone but less than four felonies may be sentenced to a term of not less than five years or more than thirty years as an extended term of imprisonment. See Ark. Code Ann. § 5-4-501 (Repl. 1997). The habitual criminal statute is strictly punitive and not designed to deter crime. See Washington v. State, 273 Ark. 482, 621 S.W.2d 216 (1981). This is true regardless of the date of the crime. See id.

A review of the record in the instant case supports the trial court's decision to adjudge appellant as an habitual offender. After the court found appellant guilty of residential burglary and misdemeanor theft of property, it ordered a pre-sentence report. The State introduced into evidence two prior felonies in which appellant was represented by counsel and found guilty in 1978. Because there was evidence introduced that appellant had two prior felony convictions, the court's ruling was proper.

Denial of Request for New Counsel

Rule 16 of our Rules of Appellate Procedure-Criminal provides that trial counsel must continue to represent a convicted defendant unless the trial court or the appellate court grants counsel permission to withdraw. However, once a notice of appeal of a judgment of conviction is filed, the appellate court has exclusive jurisdiction to relieve counsel. See Ark. R. App. P.-Crim. 16. Here, the notice of appeal was filed on April 5, 2000, and appellant's handwritten petition requesting relief of counsel was filed on May 2, 2000. Pursuant to Rule 16, the trial court correctly concluded that it lacked authority to relieve counsel and appoint new counsel.

Appellant's counsel has complied with Anders, supra. Therefore, we grant counsel's motion to withdraw, and affirm appellant's conviction.

Affirmed.

Robbins and Crabtree, JJ., agree.

1 Black told the police that the offender was a black male, approximately 45 years of age, 5'6", 160 pounds, and wearing a white T-shirt and light-colored blue jeans. Appellant was described in the arrest report as 5'9", 180 pounds, and 40 years of age.

2 This statute was amended by Act 1553 of 2001. However, at the time of appellant's offense and subsequent trial, section 5-4-501 was in effect.