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Easter v. State4/27/2005
nforcement agency.
Appellant next argues that "the evidence was insufficient to establish that the various agencies expended $500 to investigate this matter." He contends that there is not a provision in the statute that allows various agencies to combine their expenses to reach $500 in order to enhance the penalty to a felony. However, the testimony of State Police Investigator Cleveland was that the State Police investigation alone cost over $1000, including his salary and mileage. Cleveland testified that he drove from Mountain View to Calico Rock and spent half a day with Sheriff Martz in November 2002; and in May 2003 he made two trips to the North Central Unit, one to meet with Warden McQuilliams and Captain Bolia, and a second to interview appellant, during which he obtained a statement from appellant. He also testified that there were "a lot" of phone calls made to different individuals, and that it took him a day or two to "do all of the reports and do the arrest affidavits" and then he had to take that information to Batesville for a judge to sign and to file the arrest warrants. Although the accounting could have been more detailed, we hold that, when viewing the evidence in the light most favorable to the State, there was sufficient evidence presented to support the State's contention that over $500 was expended on the investigation of appellant's false complaints. No evidence was offered to refute Investigator Cleveland's testimony, and the jury is free to believe all or part of a witness's testimony.
Appellant finally argues that his sentence must be set aside because it is illegal or void. Specifically, he argues that the State chose to seek the enhanced penalty of a Class D felony instead of a Class A misdemeanor and that therefore, the State cannot further enhance the penalty by sentencing him as a habitual offender. In support of this contention, appellant cites Banks v. State, 354 Ark. 404, 125 S.W.3d 147 (2003), and Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003). Both cases are distinguishable from the present case.
In Banks, the appellant was convicted by a Pulaski County Circuit Court jury of third-degree domestic battering, second offense, a Class D felony. The maximum penalty for a Class D felony cannot exceed six years. Ark. Code Ann. § 5-4-401(a)(5) (Repl. 1997). However, appellant received an enhanced sentence of twelve years pursuant to the habitual-offender statute. In reversing, our supreme court, citing Lawson v. State, 295 Ark. 37, 746 S.W.2d 544 (1988), held that the appellant had received an illegal sentence because it was impermissible to stack a specific subsequent-offense-penalty enhancement statute upon the general habitual-criminal statute. Likewise, in Peterson, appellant was convicted of driving while intoxicated, fifth offense, and he was also sentenced as a habitual offender. This court held that appellant had received an illegal sentence and modified the sentence, citing Lawson v. State, supra.
Appellant's reliance on these cases is misplaced. Both Banks and Peterson involve stacking subsequent-offense-penalty enhancement statutes upon the general habitual-criminal statute. In the present case, the offense was increased to a felony only due to the amount of money expended upon investigation of the case, not because appellant had been previously convicted of filing false reports.
Affirmed.
Bird and Roaf, JJ., agree.
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