ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

JASON McCONNELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-262

December 10, 2003

APPEAL FROM THE SCOTT COUNTY CIRCUIT COURT

[NO. CR 2201-43]

HON. PAUL E. DANIELSON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

A Scott County jury convicted Jason McConnell of breaking or entering and three counts of criminal mischief. The trial court sentenced him to a term of one year imprisonment and suspended the imposition of sentence as to an additional term of three years. Appellant raises two points on appeal to this court: (1) that the trial court erred when it allowed the questioning of a surprise witness about out-of-court hearsay statements allegedly made by him, and (2) that there was insufficient evidence to support the convictions for breaking or entering and one count of criminal mischief. We affirm.

On July 15, 2001, Margie Allen, the postmaster in Harvey, received information that she should check the post office. When she opened the door to the lobby, she saw empty shell casings on the floor and saw that the locks and doors to the workroom had been damaged. In describing the post office, Allen testified that the lobby is separated from the workroom by a big metal door and a wooden entrance door that is kept locked. She stated that any money would have been inside a safe in the workroom. Allen stated that the lobby is open to the public twenty-four hours a day. According to Allen, the postal service leased the building from appellant's father, Fred McConnell.

Ronald Andrejack, a firearms tool mark examiner at the Arkansas State Crime Lab in Little Rock, testified that he performed an analysis on the .22-caliber Marlin rifle in evidence and compared it to the nine shell casings collected from the post office. He determined that the shell casings had been fired from the Marlin rifle.

Fred McConnell testified that he did not remember that the police had asked him about the Marlin rifle in evidence and that he did not remember telling the police that appellant told him he had hidden the rifle. Defense counsel objected to McConnell's testimony. At a bench conference, defense counsel stated:

The trial court overruled appellant's objection on the basis that if McConnell had given a prior inconsistent statement, his credibility was at issue. McConnell continued his testimony by stating that he did not remember that he and his wife eventually turned the rifle over to the police. He testified that he did not know anything about the damage that was done to the post office and that he had discussed it with appellant, who was living at home, and that appellant said that he did not know anything about it either. McConnell testified that he lived 150 yards from the post office and that he remembered a three-wheeler going by his house in "the wee hours" on July 15.

Jason White, appellant's friend who was also charged in connection with the incident, testified that on July 14, he and appellant were at a cookout and had been drinking. They left after dark in appellant's truck. White recalled that there was a rifle in appellant's truck that looked like the weapon admitted into evidence. According to White's statement, "Then [appellant] tried to break in the post office so I got out of the truck and walked around the building and I found him inside standing there. I asked him what he was doing. He told me there was money in there and I told him to take me home." White said that they left the post office but were within two miles of the post office when appellant's truck broke down. White testified that appellant was passed out on the seat when he left him there, got his brother's three-wheeler, and went fishing. He stated that he returned around 3:00 a.m. and awakened appellant.

Officer Cody Carpenter testified that he spoke with Fred McConnell and that McConnell told him that appellant had hidden the gun because he did not want to get a friend in trouble. Officer Carpenter stated that appellant's mother contacted the police to retrieve the gun from the McConnell residence.

Appellant testified that the post office is near his house and that he had stopped there to "use the restroom." He said that he and White left the post office and that his truck broke down. He pulled to the side of the road and passed out around 10:30 p.m. He noticed the next morning that the breach on the gun that was in his truck was cocked open, which meant that all of the shells had been shot from it.

Tammy Workman, appellant's sister, testified that she lives next to the post office and that she heard appellant's vehicle going to the post office. She said it was there less than five minutes. Workman stated that later that night she heard a three-wheeler coming from the post office.

The preservation of appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Goodman v. State, 74 Ark. App. 1, 45 S.W.3d 399 (2001). In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998).

Arkansas Code Annotated section 5-39-202(a) (Repl. 1997) provides that a person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building. Appellant relies on Campbell v. State, 289 Ark. 454, 712 S.W.2d 302 (1986), for the proposition that he could not have committed any crime by going inside the post office because it was open to the public. Appellant's reliance is misplaced as Campbell held that in a prosecution for burglary, the State must prove an unlawful entry because the burglary statute permits an entry upon premises that are open to the public. There is no element of unlawfulness in Ark. Code Ann. § 5-39-202(a) as it simply requires a breaking or entering. See Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). Here, appellant entered the lobby of the post office, and he did so with the purpose of committing a theft or felony. A purposeful intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the crime. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). White testified that, while inside the post office, appellant stated that there was money behind a locked door to an area that was separate from the lobby. There were bullet holes specifically around those locks and doors. The shells that had been expended were examined, and it was determined that the casings found at the post office had been fired from the rifle that was seen in appellant's truck prior to the incident and was recovered from his possession following the incident. Accordingly, appellant's conviction for breaking or entering is supported by substantial evidence.

Pursuant to Ark. Code Ann. § 5-38-203(a)(1) (Repl. 1997), a person commits the offense of criminal mischief in the first degree if he purposely and without legal justification destroys or causes damage to any property of another. The Harvey post office was unquestionably damaged as the doors and locks had been riddled with bullets. It was shown that the shell casings scattered all over the floor of the lobby had been fired from a rifle that was in appellant's possession both before and after the incident. White's testimony placed appellant inside the lobby of the post office on the night the damage occurred. Appellant's conviction for criminal mischief is supported by substantial evidence.

To the extent that appellant challenges on appeal the trial court's failure to impose sanctions against the State for not complying with discovery under Ark. R. Crim. P. 17.1(a)(i) (2003), appellant waived at trial any objection he may have had in this regard. See Robinson v. State, 317 Ark. 512, 879 S.W.2d 419 (1994). Defense counsel essentially stated that he had no objection to the fact that McConnell was not named as a witness. Even assuming that he was raising an objection by pointing out the State's failure to comply with discovery, appellant withdrew that objection when one considers the full import of what was said. When an objection is withdrawn, it is as if the objection was never made. See Upton v. State, 68 Ark. App. 84, 4 S.W.3d 510 (1999).

Appellant did, however, preserve his objection to McConnell's testimony on the ground that it was hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Ark. R. Evid. 801(c) (2003). In denying appellant's objection, the trial court pointed out that the questioning of McConnell as to whether he made a prior inconsistent statement went to his credibility as a witness. When evidence is offered to show that a witness made a prior inconsistent statement, rather than for the truth of the matter asserted, the evidence cannot be excluded as hearsay. Jones v. State, 318 Ark. 704, 889 S.W.2d 706 (1994).

Extrinsic evidence of prior inconsistent statements of a witness for the purpose of impeachment is permitted if the witness is afforded the opportunity to explain or deny the statement, and does not admit having made it, and the other party is afforded the opportunity to interrogate the witness on that statement. Ark. R. Evid. 613(b) (2003). An "inconsistent statement" as used in Rule 613 is not limited to those instances in which diametrically opposite assertions have been made. Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001). Here, McConnell testified that he did not remember telling the police anything about the rifle. Inconsistency may be found in McConnell's inability to recall. See Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). Considerable discretion is given to the trial court when determining where the line is drawn in the impeachment of a hostile witness, and those rulings will not be reversed absent an abuse of discretion. Kennedy, supra. We find no abuse of discretion by the trial court in allowing the State to impeach McConnell with his prior inconsistent statement.

Appellant points out that such unsworn, out-of-court statements cannot be used as substantive evidence of his guilt. Appellant did not object to any improper use of the evidence and has, therefore, waived this argument on appeal. See id. Moreover, appellant did not request a limiting instruction. When evidence is admissible for one purpose but not for another, an objection is wholly unavailing unless the objecting party asks the court to limit the evidence to its admissible purpose. Chisum, supra.

Affirmed.

Robbins and Bird, JJ., agree.