Turley v. State

Judith Rogers, Judge.

The appellant, Theresa Ann Turley, was found guilty by a jury of theft of property having a value of $2,500 or more, a class B felony, in violation of Ark. Code Ann. § 5-36-103 (Supp. 1989). Upon conviction, appellant was sentenced as an habitual offender to a term of thirty years in prison. For reversal, appellant argues that the trial court erred in refusing to instruct the jury on the lesser degree of theft of property, valued at less than $2,500 but more than $200, which is a class C felony, and in permitting the introduction of hearsay testimony. We find merit in the first issue raised, and reverse and remand.

The victim in this case was Ben Gibson. He testified that on December 15, 1988, numerous items were stolen from him, totalling $4,508 in value. He related on direct examination that he had recovered one of the items, a gold bracelet, and without objection, he testified that he valued it at $2,700, based on what he had paid for it three years ago.

The state also presented the testimony of George Ikard, a pawn shop owner. He told the jury that appellant pawned this gold bracelet on December 16, 1988, in exchange for $283. On cross-examination, Ikard explained that the amount he gave the appellant for the bracelet was sixty percent of what he thought it was worth, and that he could duplicate the piece new for $500. He also stated that $500 represented the wholesale cost, and that one probably could not purchase the bracelet at retail for that amount.

Appellant first argues that, based on Ikard’s testimony, the trial court erred in refusing to give the proffered instruction on theft of property having a value of less than $2,500, but more than $200. We agree.

According to Ark. Code Ann. § 5-36-103(b)(l)(A) (Supp. 1989), theft of property is classified as a class B felony if the value of the property is $2,500 or more. Under subsection (b)(2)(A), the offense is a class C felony if the value is greater than $200, but less than $2,500. We have held that where there is the slightest evidence to warrant an instruction on a lesser included offense, it is error to refuse to give it. Johnson v. State, 28 Ark. App. 256, 773 S.W.2d 450 (1989).

Here, the victim testified that the total value of the items stolen was $4,508, and included in his estimation was the $2,700 value placed on the gold bracelet. Mr. Ikard, however, gave testimony valuing the bracelet at only $500, which, if believed by the jury, would have reduced the total value of the property to less than $2,500. Thus, the evidence was not so conclusive as to demonstrate that only the greater offense could have been committed by the appellant. The jury was entitled to consider Mr. Ikard’s testimony; therefore, it was error to refuse an instruction on the lesser degree of theft. Although we hold that the instruction should have been given, the evidence was conflicting, and thus susceptible to more than one interpretation. Accordingly, we reverse and remand for a new trial.

As her second point on appeal, appellant contends that the trial court erred in allowing the admission of hearsay testimony. The subject of this objection concerns the victim’s testimony regarding the use of his stolen credit cards. Mr. Gibson testified that several credit cards were taken from him, which he reported missing to the issuers on December 16, 1988. Gibson testified, over the appellant’s objection, that he received monthly statements from the credit card companies showing that four charges were made on December 16th, and one on December 21st, for a total of $275.05. He further stated that he did not make these charges and that he did not authorize anyone to use his credit cards.

Under Ark. R. Evid. 801(c) hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Thus, to determine whether testimony is hearsay, it is necessary to consider the, purpose for which it is offered. It is not clear, from the record in the instant case, what the testimony objected to was intended to prove. Furthermore, the hearsay argument is made in general terms without application to specific objections. We, therefore, have concluded that discussion of the hearsay issue in this opinion would not be helpful as the same situation is not likely to arise on retrial. See Bennett v. State, 302 Ark. 179, 186, 789 S.W.2d 436 (1990); Hodge v. State, 27 Ark. App. 93, 99, 766 S.W.2d 619 (1989).

Reversed and Remanded.

Cooper, J., concurs. Wright, Acting C.J., dissents.