Ronald Jerome Robinson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, CHIEF JUDGE

DIVISION IV

RONALD JEROME ROBINSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-383

NOVEMBER 1, 2000

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR 98-898]

HONORABLE CHARLES DAVID BURNETT,

CIRCUIT JUDGE

AFFIRMED

Appellant Ronald Jerome Robinson was convicted by a jury of first-degree murder and was sentenced to ten years in the Arkansas Department of Correction. Mr. Robinson now appeals, challenging only the sufficiency of the evidence to support the verdict. We affirm.

When an appellant challenges the sufficiency of the evidence, we will affirm if the verdict is supported by substantial evidence. Stivers v. State, 64 Ark. App. 113, 978 S.W.2d 749 (1998). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only the evidence that tends to support the verdict. Id.

Tracy Hardy testified on behalf of the State. He stated that he and the victim, Phil Gladness, were at the Easy Way Grocery Store in West Memphis on the evening of October 17, 1998. While at the store, Mr. Gladness got into an argument with Mr. Robinson. Mr. Hardy and Mr. Gladness then left the store and drove to Mr. Hardy's residence, which was close by.

About ten or fifteen minutes later, appellant showed up at Mr. Hardy's house, and his argument with Mr. Gladness resumed. Mr. Hardy did not see any physical contact between the men, and he testified that he did not recall any threat being made by Mr. Gladness. According to Mr. Hardy, it appeared that the argument was over and appellant was getting ready to leave when appellant turned around with a pistol and shot Mr. Gladness. Mr. Gladness fell to the ground and died as a result of the gunshot wound.

Mr. Hardy's mother was on the front porch and watching when the activity occurred outside the house. Mrs. Hardy testified that she heard no threats and that Mr. Gladness "never moved." She observed Mr. Robinson walking away like he was going toward the street, then turning around and firing. After shooting the victim, Mr. Robinson walked away and did not return to the scene.

Dr. Stephen Erickson, a medical examiner for the Arkansas State Crime Lab, testified that he examined the gunshot wound to Mr. Gladness's chest. His examination revealed no evidence of close-range firing, which was based on the absence of any smoke, soot, or powder marks on the skin. Lisa Sakevicius, chief criminalist for the Crime Lab, examinedthe victim's shirt. Because there was no evidence of gunpowder flake or lead vapor patterns on the garment, Ms. Sakevicius classified the shooting as "distant range."

Mr. Robinson testified on his own behalf and admitted that he shot Mr. Gladness on the night at issue. However, he asserted that he shot him in self defense. He stated that Mr. Gladness was harassing him at the grocery store and, as he was making his way out of the store, Mr. Gladness spit in his face. Mr. Robinson asserted that he did not intend to confront Mr. Gladness again on that night, but that he walked by him on his way to another house. After the argument resumed, Mr. Gladness allegedly cursed Mr. Robinson and made physical contact with him. Then, Mr. Gladness allegedly reared back with a beer bottle as if to hit Mr. Robinson, so Mr. Robinson shot him. Mr. Robinson testified that the victim was much larger than he, was trying to hurt him, and that he was terrified. He acknowledged backing away from Mr. Gladness before he fired, but he maintained that he was not trying to kill him.

Mr. Robinson argues on appeal that substantial evidence does not support his conviction. He asserts that one of the witnesses to the shooting, Anthony Malone, testified that Mr. Gladness did have a beer bottle in his hand when he was shot and that he raised his arm to strike just prior to the shooting. Mr. Robinson further notes that several of the witnesses characterized him as nonviolent and always in a good mood. Mr. Robinson directs us to his own testimony, which was that he shot Mr. Gladness only because he feared being beaten with a bottle.

Arkansas Code Annotated section 5-2-607(a)(1) (Repl. 1997) provides that a person is justified in using deadly force only if he reasonably believes that the other person is committing or is about to commit a felony involving force or violence. Section (b)(1) provides that a person may not use deadly force in self-defense if he knows that he can avoid the necessity of using that force with complete safety by retreating, subject to limited exceptions not applicable here. Mr. Robinson argues that his conviction should be reversed because he was justified in using deadly force. He contends that, under the circumstances, he reasonably believed Mr. Gladness was about to commit a violent felony against him, and that he could not avoid using deadly force by retreating.

Mr. Robinson's sufficiency argument is not preserved for appellate review. In order to preserve a challenge to the sufficiency of the evidence supporting a lesser-included offense, a defendant is required to address the lesser-included offense in his directed-verdict motion either by name or by apprising the trial court of the elements of the offense. Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996). At the close of the State's case, Mr. Robinson moved for a directed verdict only on the capital murder charge, stating, "The State failed to show premeditated and deliberated purpose here. It was an occurrence during a heated argument, and there's no showing that he went to that location intending to kill Mr. Gladness, and I move for a directed verdict on that charge." This motion was renewed at the close of the case. Mr. Robinson was convicted of first-degree murder, and because his motions failed to reference this charge either by its name or elements, his argument is waived for appeal purposes. Moreover, his argument is not preserved because it lacks the specificityrequired by Ark. R. Crim. P. 33.1. His self-defense argument now being raised on appeal was not made in his directed-verdict motions.

Although Mr. Robinson's argument is not properly before the court, we note that it would have been of no avail even had it been preserved. Mr. Robinson admitted to shooting the victim, and there was testimony that he was walking away and turned around just before he shot. Although Mr. Robinson testified that he shot because Mr. Gladness took an assaultive posture with a beer bottle, this testimony was uncorroborated, and the jury is not required to believe the testimony of the accused, as he is the person most interested in the outcome of the case. See Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Although Mr. Robinson suggests that his testimony was corroborated by Mr. Malone, our review reveals otherwise. Mr. Malone testified that Mr. Gladness was holding a beer bottle, but that "I did not see him raise a beer bottle to hit him in the head." Tests conducted at the Arkansas State Crime Lab indicated that the shooting was not at close range. Considering this evidence in the light most favorable to the State, there was substantial evidence to support the jury's finding Mr. Robinson's use of deadly force was not justified.

Affirmed.

Bird and Neal, JJ., agree.