Cite as 2010 Ark. App. 39 ARKANSAS COURT OF APPEALS DIVISION III No. CACR08-588 JEFFREY L. BOEN, Opinion Delivered 13 JANUARY 2010 APPELLANT APPEAL FROM THE JOHNSON V. COUNTY CIRCUIT COURT, [NO. CR2006-102.A] STATE OF ARKANSAS, THE HONORABLE JAMES D. APPELLEE KENNEDY, JUDGE AFFIRMED; MOTION TO WITHDRAW GRANTED D.P. MARSHALL JR., Judge The supreme court having granted a rule on the clerk, 374 Ark. 61, 285 S.W.3d 667 (2008), and our court having ordered rebriefing, 2009 Ark. App . 535, 336 S.W.3d 883, we can now decide this appeal. A jury convicted Jeffrey Boen of theft of p roperty and first-degree criminal mischief. Boen, who trades horses, livestock, and equipment for a living, stole three cows and a red bull from a fenced-in pasture. The circuit court sentenced Boen to fifteen years’ incarceration and a sixteen thousand dollar fine. His lawyer has submitted a supplemented no-merit brief and again moved to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and Arkansas Supreme Court and Court of Appeals Rule 4-3(k).
Cite as 2010 Ark. App. 39 Boen’s counsel addressed three rulings in his brief: (1) the circuit court’s denial of Boen’s directed verdict motion; (2) the court’s sustaining the State’s objection to part of Boen’s closing argument; and (3) the court’s setting Boen’s appeal bond at $50,000.00 instead of the requested $10,000.00. In his pro se point for reversal, Boen asserts that the court abused its discretion by disallowing his lawyer’s closing argument about the toolmark of bolt cutters––a mark “almost as unique as a fingerprint.” On this record, we agree with Boen’s lawyer: an appeal on the merits would be wholly frivolous. Cf. Campbell v. State, 74 Ark. App. 277, 279–80, 47 S.W.3d 915, 917 (2001). After the State’s case, Boen put on his defense. Boen failed to renew his motion for a directed verdict at the close of all the evidence. Though he did move at the close of the State’s evidence, the governing Rule required Boen to renew his motion to preserve his sufficiency challenge. Ark. R. Crim. P. 33.1(a), (c). He thus waived sufficiency. The circuit court did not abuse its discretion in denying the attempt by Boen’s lawyer to argue about the toolmark of bolt cutters. Closing arguments are confined to the evidence introduced during trial and the reasonable inferences from that evidence. Rohrbach v. State, 374 Ark. 271, 280, 287 S.W.3d 590, 597 (2008). During his closing, Boen’s lawyer attempted to comment on the State’s failure to offer any -2-
Cite as 2010 Ark. App. 39 toolmark proof linking the cut fence to Boen. The State objected. No evidence about toolmarks had been introduced during trial. It was no abuse of discretion, therefore, for the court to sustain the State’s objection and limit Boen’s closing in this way. Ibid. After sentencing, Boen asked the court to leave the $10,000.00 trial bond as the appeal bond, but the court set a new $50,000.00 bond. We were not sure if this was an adverse ruling within the meaning of our Rule and Anders because the point did not go to Boen’s conviction, Ark. Sup. Ct. R. 4-3(k)(1), but we asked counsel to brief the point. Further research has convinced us that our affirmance of Boen’s conviction moots the appeal-bond issue. Walley v. State, 353 Ark. 586, 608–09, 112 S.W.3d 349, 362 (2003). Affirmed; motion to withdraw granted. V AUGHT, C.J., and GLOVER, J., agree. -3-
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.