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Kennedy v. State
Citations: 49 Ark. App. 20; 894 S.W.2d 952; 1995 Ark. App. LEXIS 131Docket: CA CR 94-553
Court: Court of Appeals of Arkansas; March 15, 1995; Arkansas; State Appellate Court
Avery Lynn Kennedy was convicted of felony theft by receiving and sentenced to ten years in the Arkansas Department of Correction, along with a $5,000 fine. He appeals the conviction, claiming that the trial court improperly denied his motion for a directed verdict and allowed evidence of his prior criminal conduct. The court affirmed the conviction, stating that a directed verdict challenges the sufficiency of evidence, which must be substantial enough to support the verdict beyond mere suspicion. Evidence presented included testimony from Randy Kennedy, whose trailer was burglarized, revealing that four guns were stolen, though he later admitted that one claimed as stolen had actually been traded to appellant’s father. The police recovered a .308 Remington rifle from White, who purchased it from Kennedy, and evidence of a second rifle, a 22-250, was found in Kennedy's truck. The court noted that Arkansas law defines theft by receiving as possessing stolen property knowing or having reason to believe it was stolen, with felony classification based on property value. Kennedy argued that ownership and value of the stolen guns were not sufficiently proven, but the court found the evidence adequate to support the conviction. Appellant's argument contesting the proof of ownership was rejected. Evidence indicated that a 22-250 rifle found in his possession matched the serial number of a rifle reported stolen by Randy Kennedy, who testified he received $599 from insurance for the theft. Although Kennedy later claimed he mistakenly reported the rifle as stolen and intended to return the insurance money, the jury was not obligated to accept this testimony, especially since Kennedy expressed a desire to drop charges against his nephew. The court did not consider appellant's argument regarding the valuation of the property, as it was not preserved for review; his motion for a directed verdict lacked specificity about the value element of felony theft by receiving, as established in Walker v. State. Additionally, appellant contended that the trial court erred in admitting evidence of his prior criminal conduct. Under Rule 404(b) of the Arkansas Rules of Evidence, such evidence is generally inadmissible to prove character but may be relevant for other purposes, such as motive or method of operation. Testimony from Jack Gibson, detailing a prior incident in which he and appellant stole guns, was admitted to establish opportunity, motive, and a unique method of operation. The trial court's decision to admit this evidence was upheld, as it demonstrated a consistent pattern of behavior. The court found no abuse of discretion in its ruling, noting that any potential for unfair prejudice did not outweigh the evidence's probative value, especially as the jury was instructed to disregard the prior conduct as evidence of guilt in the current case. The trial court’s decision was affirmed.