ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

RICHARD BEAVERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-1090

JULY 3, 2002

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR2000-1126, NO. CR1998-275]

HONORABLE JOHN B. PLEGGE, CIRCUIT JUDGE

AFFIRMED

ANDREE LAYTON ROAF, Judge

Richard Beavers was convicted in a bench trial of theft of property with a value of $2,500 or more and sentenced to seven years' imprisonment. Following the bench trial, the trial court revoked Beavers's probation on a 1998 conviction and sentenced him to seven years to be served concurrently with the new conviction. Beavers's counsel has filed an Anders brief and motion to withdraw as counsel alleging that there are no non-frivolous grounds for reversal of the theft of property conviction. With regard to the revocation, Beavers's counsel argues that the trial court erred in revoking Beavers's probation because 1) the State failed to prove the conditions of Beavers's probation, and 2) the trial court lacked jurisdiction to revoke. We affirm both the conviction and the revocation.

At trial, Marvin Shireman, owner of B.J. Motors, testified that Beavers had come to his business and asked if he could detail some cars. Shireman gave him the job and noted that Beavers had done an extremely good job. Shireman stated that, on the morning of the second day, he askedBeavers to take a title over to Twin City Motors and collect a check. Shireman testified that he allowed Beavers to drive a 1987 Honda Civic for the errand and that he did not see him again. He reported the vehicle stolen a couple of days later, after allowing time for Beavers to return the vehicle. Approximately twelve days later, Shireman was contacted by the police and informed that the vehicle had been found. Shireman stated that the vehicle "looked like it had been through a battlefield" and that the value of the vehicle at the time Beavers took it was between $2,600 and $2,800. Tatus Robinson, an officer with the Little Rock Police Department, testified that he stopped Beavers in the Honda Civic after having determined that the vehicle was stolen. He further testified that Beavers was driving and that he took him into custody.

At the close of the State's case-in-chief, Beavers moved for directed verdict arguing that the State had failed to prove that he had possessed the vehicle and that he had the purpose of depriving the owner of it. The trial court denied the motion. Beavers then testified on his own behalf. He stated that Shireman had only paid him one time during the week and that he was supposed to be paid daily, and that when he went to pick the check up it was not ready, so he drove home, which was "right around the corner." Beavers further stated that Shireman had put a $500 bounty on his head if he did not return the car.

At the close of all the evidence, Beavers renewed his motions for directed verdict, and the court again denied the motions. The trial court found Beavers guilty of theft of property with a value of $2,500 or more. The State then introduced a certified copy of a 1998 judgment and disposition order for possession of cocaine, possession of drug paraphernalia, and aggravated assault, as evidence of Beavers's three prior felonies. Beavers was sentenced to seven years in the Arkansas Department of Correction. After sentencing, Beavers asked permission to speak to the court and noted that he "wasn't prepared for this trial because [he] didn't even have any of [his]witnesses...." Beavers's counsel responded that the witness's statements contradicted Beavers, and as such, he did not call him as a witness. Beavers then stated that he had asked for another attorney because he had not seen any motions and his attorney did not call other potential witnesses. The court then reiterated its earlier sentence of seven years.

Immediately after the bench trial, the court took up the matter of the State's petition to revoke Beaver's probation. No additional testimony was heard, and the court took "judicial notice [of] the testimony in the preceding case for the purposes of the revocation hearing in case 98-275...." Beavers's counsel moved for dismissal "since there was no testimony." The court found that Beavers violated the terms and conditions of his probation and sentenced him to seven years to be served concurrent with the sentence in the new conviction.

Regarding the theft-of-property conviction, pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, Beavers's counsel has filed a motion to withdraw on the grounds that there is substantial evidence from which the trial court could infer that Beavers had the requisite specific intent for theft of property. Beavers's counsel also contends that any allegations of ineffective assistance of counsel are waived for failure to obtain a ruling. In the alternative, Beavers's counsel claims that any allegation of ineffective assistance of counsel is without merit because Beavers failed to show any prejudice.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other without speculation or conjecture. Id. Upon a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will beconsidered. Id.

A person commits theft of property if he "knowingly takes or exercises unauthorized control over...the property of another person, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1) (Repl. 1997). Theft of property is a class B felony if the value of the property is $2,500 or more. Ark. Code Ann. § 5-36-103(b)(1)(A) (Repl. 1997). To deprive means "to withhold property...either permanently or under circumstances such that a major portion of its economic value, use, or benefit is appropriated to the actor or lost to the owner." Ark. Code Ann. § 5-36-101(4)(A) (Repl. 1997). The trial judge, as the trier of fact, is the judge of the credibility of the witnesses, and he has the right to reject or accept such portions of testimony as he believes them to be true or false. Wrather v. State, 1 Ark. App. 155, 613 S.W.2d 601 (1981). The existence of criminal intent is a question of fact to be determined by the trier of fact when criminal intent may be reasonably inferred from the evidence. Kendrick v. State, 37 Ark. App. 95, 823 S.W.2d 931 (1992). Beavers testified that he did, in fact, drive the vehicle to pick up the check for Shireman and that when he found out the check was not ready, he drove the vehicle home. Testimony established that when Beavers was arrested, he was driving the vehicle and that twelve days had elapsed. Shireman testified that when the vehicle was returned to him, "it looked like it had been through a battlefield." He further testified that the value of the vehicle before the incident was approximately $2,600 to $2,800. Consequently, there is substantial evidence supporting Beavers's conviction for theft of property with a value of $2,500 or more.

It is well-settled that claims of ineffective assistance of counsel may not be raised on direct appeal unless the issue was considered by the trial court. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Moreover, matters left unresolved, such as failure to obtain a ruling on an objection, cannot be raised for the first time onappeal. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998). In order to prevail with an ineffective assistance of counsel argument, the defendant must show that counsel's performance was deficient such that the errors made were so serious that counsel was not functioning as counsel guaranteed by the Sixth Amendment and that the deficient performance prejudiced the defense. Farmer v. State, 321 Ark. 283, 902 S.W.2d 209 (1995). Even if counsel's conduct is shown to be professionally unreasonable, the judgment must stand unless the defendant demonstrates that the error had a prejudicial effect on the actual outcome of the case. Id.; see Price v. State, 347 Ark. 708, 66 S.W.3d 653 (2002).

At trial, Beavers argued that he was unprepared because his counsel failed to call certain witnesses that he made known to him. Beavers failed to obtain a ruling on his objection, and as such, the issue may not be raised for the first time on appeal. However, even if we were to reach the merits of his argument, the decision to call certain witnesses and reject others is largely a matter of trial strategy, and counsel must use his own best judgment to determine which witnesses will be beneficial to his client. Farmer, supra. Beavers's counsel stated that he did not call the witnesses because their testimony would have been inconsistent with Beavers's testimony. Because Beavers has failed to show any prejudice as a result of the acts of his counsel, this argument does not serve as a ground for reversal.

Because Beavers's counsel has satisfied the requirements of Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals and the Anders procedural blueprint, we affirm Beavers's conviction for theft of property and grant counsel's motion to withdraw.

With regard to the revocation, Beavers's counsel contends that the State failed to prove the conditions of Beavers's probation by not introducing the conditions into evidence. The State asserts that this argument is raised for the first time on appeal and is procedurally barred. Alternatively, theState contends that this argument is without merit because there is substantial evidence that Beavers was on probation.

In order for a defendant's probation to be revoked, the State need only prove that the defendant committed one violation of the conditions. Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001); Ramsey v. State, 60 Ark. App. 206, 959 S.W.2d 765 (1998). Even if Beavers's argument can be characterized as raising the issue of sufficiency of the evidence, the condition that a person on probation not commit another offense punishable by imprisonment is statutory and found in Ark. Code Ann. § 5-4-303(b) (Supp. 2001). Moreover, a defendant is bound on appeal by the scope of his arguments below, and this argument was not made to the trial court. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999).

Beavers's counsel also argues that the trial court lacked jurisdiction to hold a probation revocation proceeding, because on November 24, 1998, the trial court entered a judgment and disposition order in which the court placed Beavers on probation and fined him. He argues that because Beavers's sentence of probation and fine was put into execution the trial court lacked jurisdiction to modify the sentence. The State contends that the trial court had jurisdiction to revoke Beavers's probation, because McGhee v. State, 334 Ark. 543, 975 S.W.2d 834 (1998), only prevents the trial court from modifying or amending probated and suspended sentences once they are placed into execution and does not hold that probated sentences which include a fine cannot be revoked.

The case of McGhee, supra, involved a second revocation of the appellant's probation. McGhee was sentenced to thirty-six months' probation and ordered to pay a fine. His probation was revoked and he was sentenced to sixty days' imprisonment in the Department of Community Punishment with probation to follow. The State later filed a second petition to revoke, and the trialcourt granted the petition. The supreme court stated that a "trial court loses jurisdiction to amend or modify the original sentence once a valid execution is put into place." McGhee, supra at 545 (Emphasis added); see Harmon v. State 317 Ark. 47, 876 S.W.2d 240 (1994). Consequently, the supreme court held that the trial court was without jurisdiction to modify the appellant's probation a second time.

Beavers contends that the State's contention is incorrect and that the "State's stratagem is known as the loose view of precedent," because the State focused on immaterial facts and ignored the material fact of the case. Beavers further contends that the State's interpretation of McGhee is "illogical, legal alchemy." We disagree. Here, Beavers's probation was revoked for the first time. McGhee and Harmon address modifications of probated and suspended sentences, not the first-time revocation of probation.1 Consequently, we affirm Beavers's probation revocation.

Affirmed.

Hart and Vaught, JJ., agree.

1 Bagwell v. State, 346 Ark. 18, 53 S.W.3d 520 (2001), is likewise not applicable to this case because Beavers was sentenced to probation in November 1998, and Act 1569, allowing modification of sentences after execution, became effective April 15, 1999. Additionally, Bagwell addressed whether the circuit court had jurisdiction to enter an additional sentence of 120 days in the regional punishment facility while continuing an earlier suspended sentence.