Edmar Jermaine Higgins v. State of Arkansas

ar00-685

DIVISION I

WENDELL L. GRIFFEN, JUDGE

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CACR00-685

December 20, 2000

EDMAR JERMAINE HIGGINS AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR99-3062, CR97-3855, CR99-3977]

V. HON. JOHN LANGSTON, JUDGE

STATE OF ARKANSAS AFFIRMED AND REMANDED FOR

ENTRY OF CORRECTED SENTENCE

Edmar Higgins challenges the sufficiency of the evidence supporting his conviction for possession of a firearm by a certain person and asserts that the trial court made a sentencing error. The State concedes that the trial court made a sentencing error and requests that we remand for entry of a corrected sentence. We affirm appellant's conviction and remand for the trial court to enter a corrected sentence.

Appellant was charged with possession of a firearm by a certain person1 in connection with an incident on March 18, 1998, in which four males opened fire on Johnny Green's car. Green was paralyzed as a result of the incident. At trial, the State presented testimony by five witnesses: Johnny Green; Shirley Green, Johnny's mother; Shimberly Green, Johnny'ssister; Chris Bell, Johnny's brother; and Officer J.C. White, who investigated the incident. The Greens and Bell offered inconsistent testimony with regard to the circumstances surrounding the shooting, but Johnny and Chris specifically identified appellant as one of the four male shooters, and stated that they saw him holding a gun. After the State rested, appellant moved for a directed verdict, which the trial court denied.

Appellant then testified, denying that he possessed a gun or shot the victim, and presented a witness, Billy Brooks, who testified that appellant was with him when the shooting occurred. After appellant rested, he renewed his motion for a directed verdict, which the trial court again denied. A jury found appellant guilty and the trial court sentenced him to serve fifteen years in the Arkansas Department of Correction with respect to this charge.

Sufficiency of the Evidence

Because appellant stipulated at trial that he had a conviction for a prior felony, the issue in this case is whether the State proved that he possessed a firearm in violation of Arkansas Code Annotated section 5-73-103 (Repl. 1997). On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. See id. In determiningwhether there is substantial evidence, we consider only that evidence tending to support the verdict. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999).

The testimony in this case is remarkably conflicting. The State's witnesses contradicted each other with regard to, among other things, where the witnesses themselves were located when the shooting took place and the type of gun appellant possessed. For example, Shirley Green testified that she was at a nearby friend's house when the shooting occurred. Shimberly Green testified that she, Bell, and Bell's girlfriend were at her mother's house when the shooting occurred. However, Bell testified that he, his mother, and Shimberly were at Shirley's house when the shooting occurred, and his girlfriend left before the incident occurred. Further, the victim testified that appellant carried a rifle, but Bell testified that appellant carried a handgun. In addition, appellant's witness provided him with an alibi at the time of the shooting, which directly conflicts with the victim's family members' testimony.

However, it is clear that the weighing of evidence and the determination of witness credibility is a function for the jury, and its determination in this regard is binding on this court. See Silverman v. State, 63 Ark. App. 94, 974 S.W.2d 484 (1998). Further, a jury is free to accept some parts of a witness's testimony and reject other parts. See White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). Moreover, we do not weigh the evidence presented at trial, as that is a matter for the factfinder. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

Rather, this court's role is to determine whether there was substantial evidence in thiscase from which the jury could find that appellant possessed a firearm. Deferring to the jury's apparent finding that the State's witnesses, contradictory testimony notwithstanding, were more credible than appellant's witnesses, we hold that the witnesses' testimony that appellant possessed a gun at the time of the shooting was sufficient to preclude the trial court from granting a directed verdict in appellant's favor. Therefore, we affirm the trial court's denial of appellant's motion for a directed verdict.

Sentencing Error

However, we agree that the trial court erred in imposing appellant's sentence. The trial imposed sentencing with respect to several charges, and a review of the sentences imposed is necessary in order to understand the sentencing error in this case.

In case number CR 99-3062, appellant was charged under Count 3 with possession of firearm by a certain person, the charge upon which this appeal is based. He was sentenced to serve 180 months on this charge. Appellant subsequently pled guilty to Count 1, committing a terroristic act, in the same case, and was sentenced to serve 120 months. The court ordered this sentence to be served consecutively to the firearms possession charge.2

In case number CR 99-3977, appellant pled guilty to possession of a controlled substance with intent to deliver. He was sentenced to serve 120 months on this charge. This sentence was to be served concurrently with the 120-month sentence for committing a terroristic act, and consecutively to the 180-month sentence for possession of a firearm, asnoted above.

Appellant was also sentenced in connection with two cases in which his revocation was revoked, CR 97-2857 and CR 97-3855. He was sentenced to serve sixty months for each revocation, but the trial court ordered that the revocation sentences were to be served concurrently with each other. Pursuant to Arkansas Code Annotated section 16-93-607(e)(2)(1987), the trial court also ordered these sentences to run consecutively to appellant's sentence for possession of a firearm.

The trial judge orally pronounced appellant's sentence as follows:

So, what I will do on each of the cases, CR 97-2857 and CR 97-3855, it'll be the judgment and sentence of the court that he receive five years in the Arkansas Department of Correction[] on each of those. They will be concurrent with one another, and that five year term will be consecutive to the fifteen years that he received in the jury verdict.

The judgment and commitment order for Counts 1 and 3 indicate: "Ct. 1 to run consecutive[ly] to CR 97-2857 & 97-3855." A separate notation states that "Ct. 1 and Ct. 3 are to run consecutively. This case is to run concurrent[ly] to CR 99-3977." The same order indicates the total time to serve on all offenses listed is 300 months.

The apparent sentencing error results because the judgment and commitment orders indicate that sentence for terroristic threatening is to run consecutively to the revocation sentences and the firearms possession charge, but also indicate that the revocation sentences are to run consecutively to the firearms possession charge. The issue, then, is whether appellant's revocation sentences are to run consecutively to his ten-year sentence for committing a terroristic act, or consecutively to the fifteen-year sentence for possession ofa firearm. In short, if appellant's revocation sentences run consecutively to his sentence for committing a terroristic act, his total sentence would be thirty years. If his revocation sentences run consecutively to his sentence for firearms possession, he would serve only twenty-five years, because he would serve his revocations sentences concurrently with his sentence for committing a terroristic act.

We are convinced that the trial court intended for each of the revocation sentences and the 120-months sentenced for terroristic act to run consecutively to the fifteen-year sentence for possession of a firearm. First, the trial judge orally indicated that the revocation sentences would run concurrently with each other and consecutively to the fifteen-year sentence. Second, the judgment and commitment order for the revocation charges clearly states that the revocation sentences are "to run consecutive[ly] to CA 99-3062 - Ct. 3; concurrent to all others." (Emphasis added). Third, the trial judge's intent not to exceed a twenty-five year sentence may also be inferred from the fact that he ordered appellant's ten year sentence for possession of a controlled substance to run concurrently with his ten-year sentence for committing a terroristic act.

A judgment nunc pro tunc can be subsequently corrected to speak the truth and to correct a clerical mistake, but not to modify a judicial act. See McCuen v. State, 338 Ark. 631, 999 S.W.2d 682 (1999); Clements v. State, 312 Ark. 528, 851 S.W.2d 422 (1996). In McCuen, the trial judge orally indicated that appellant's sentence would include a fine, but the judgment and commitment order did not include a fine. The trial court subsequently entered a judgment nunc pro tunc to correct the omission. The supreme court affirmedbecause there was no factual dispute that the trial court's sentence in open court included the fine. See id.

Similarly, here there is no factual dispute that the trial court intended to order appellant's revocation sentences to run consecutively to his sentence for possession of a firearm and concurrently with each other and the remainder of his sentences. As in McCuen, this case involves precisely the kind of clerical error meant to be corrected by a judgment nunc pro tunc.

Therefore, we affirm the trial court's denial of appellant's motion for a directed verdict, and remand this case to the trial court to enter a corrected sentence. The corrected judgment should reflect that appellant's revocation sentences are to run consecutively to his sentence for possession of a firearm, and concurrently with his sentences for committing a terroristic act and possession of a controlled substance with intent to deliver.

Affirmed and remanded for entry of corrected sentence.

Hart and Bird, JJ., agree.

1 Appellant was also charged with two counts of committing a terroristic act. One of these charges was nol prossed, and appellant does not challenge the sufficiency of the evidence with respect to the remaining charge.

2 Count 2, another terroristic act charge, was nol prossed.