Jack Nelson Jones Professional Association

November 12-18, 2018

Calvin Damond Blair v. State of Arkansas, 2018 Ark. App. 509 (October 24, 2018)

This appeal was brought by Calvin Damond Blair (Blair) from a conviction in Pulaski County Circuit Court, Honorable Christopher Piazza presiding over a jury trial. Blair was found guilty of battery in the first degree, possession of a firearm by certain persons (convicted felon), and theft by receiving. He was sentenced as a habitual offender to a total of fifty-one years’ imprisonment. Blair’s only bone of contention on appeal was his conviction for theft by receiving, arguing (1) the State failed to introduce substantial evidence the firearm he possessed on October 24, 2016 was stolen, and (2) the State failed to introduce proof the allegedly stolen firearm had any value. The Court of Appeals denied the appeal and affirmed the trial court’s award.

October 16, 2016 Blair called Timothy Parker (Parker) between 9:00 and 10:00 p.m., to come out of Parker’s house. When Parker did so, a third man ran toward Parker and Blair. Both Blair and the third man had firearms and demanded that Parker open the door to his house. Parker’s wife opened the front door, and as Parker attempted to run through the door and lock it, he was shot twice by Blair. Blair and the third man went to the bedroom with Parker’s wife. Parker heard Blair tell the third man to go see if Parker was dead. The third man then shot Parker’s dog twice and reported to Blair that both Parker and his dog were dead (they both survived). Four shell casings were recovered from the home – two 9mm casings and two .40 caliber casings.

Blair was arrested on October 24 by the Little Rock Police Department for outstanding warrants. At the time of his arrest, Blair was wearing a holster on his right hip containing a black Smith & Wesson M&P .40 caliber firearm. Officer Scott Miles (Miles) identified the pistol presented by the State at trial as the one Blair possessed at the time of his arrest, and said it was fully loaded with eight bullets, including one in the chamber. Miles also identified the firearm by its serial number, which he had recorded—HWR0747.

Presley Roberts (Roberts) testified that the firearm taken from Blair had been purchased by Roberts for his nephew, but it had been stolen from Roberts’ truck; he had filed a police report regarding the theft. He testified he recognized the firearm as his by the way it looked, and he believed the firearm’s serial number was R0767. Roberts testified he did not know Blair, nor had he authorized Blair or anyone else to have the firearm.

Blair moved for a directed verdict at the close of the State’s case, specifically arguing that the State failed to prove value for the .40 caliber firearm, and that Roberts had misidentified the serial number. After the court denied the motion, Blair testified in his own defense. Blair admitted that he had a .40 caliber firearm on the date and place testified to by Parker, and that he had shot Parker with that firearm (albeit in self-defense). However, Blair testified that the gun he shot Parker with was not the gun introduced by the State into evidence, because he had dismantled that gun and thrown the pieces into various trash dumpsters as he fled the scene.  Blair stated that he had traded marijuana for that gun, and he did not know if it was stolen. Blair testified that the gun taken from him at his arrest was a gun he had gotten later from his friend Jabaris as a gift for favors he performed for Jabaris. He did not know if that gun was stolen either, but admitted he got all his guns off the street (as a previously convicted felon, Blair could not have legally purchased such a firearm). After Blair rested his case, Blair renewed his motions for a directed verdict of acquittal and added that the State had failed to prove he knew or had good reason to believe the gun he possessed was stolen. The Court denied the motion, the jury found Blair guilty, and he appealed.

On appeal, the Court reviewed Blair’s motion for a directed verdict to acquit as a challenge to the sufficiency of the evidence which must be weighed in a light most favorable to the appellee (the State), considering only that evidence which supported the verdict. To sustain a charge of theft by receiving, evidence must show that the person received, retained, or disposed of stolen property of another, and knew or had good reason to believe the property was stolen. The unexplained possession of recently stolen property or acquisition of property for an amount far below the property’s reasonable value both give rise to a presumption that one knew or believed it was stolen.

The Court held that the jury was free to believe any witness’s testimony in part or in whole; it could resolve conflicts in testimony and inconsistent evidence; it need not set aside common sense; and it could consider the evidence as a whole. The jury was able to infer the defendant’s guilt from improbable explanations or incriminating conduct. Thus, Roberts identified the firearm as his, and while the serial-number was off by one number, that discrepancy was an issue to be weighed by the jury. The jury was also free to disbelieve Blair’s testimony that he had destroyed the gun with which he admittedly shot the victim. (The jury was also free to believe that Blair shot Parker with a .40 caliber gun, dismantled and secreted that weapon, and then received a separate .40 caliber weapon on the street as a gift from the not-licensed-gun-dealer Jabaris, which turned out to be Mr. Roberts’ stolen firearm.)

Blair next argued the circuit court erred in denying his motion for directed verdict on the theft-by-receiving charge because the State failed to prove the firearm had any value. In holding against Blair on this point, the Court noted that theft-by-receiving was a Class D felony if the firearm was valued at less than $2500. The Court noted a prior Arkansas case holding theft-by-receiving of a firearm did not require affirmative proof of the firearm’s value to obtain a conviction. In interpreting the statute now, the Court held that a firearm had some value and possession of a stolen weapon “valued at less than $2500” meant that theft-by-receiving of a firearm was at least a Class D felony where the State had not established a higher value of the weapon than $2500.

The Court affirmed the lower court’s ruling on all points raised on appeal and affirmed the conviction.