Thadius Brown v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar04-574

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION II

THADIUS BROWN

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR 04-574

June 29, 2005

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SIXTH DIVISION [CR03-758]

HONORABLE TIMOTHY D. FOX,

CIRCUIT JUDGE

AFFIRMED; MOTION GRANTED

David M. Glover, Judge

Appellant, Thadius Brown, was tried by a jury and found guilty of the offense of aggravated robbery. He was sentenced to ten years in the Arkansas Department of Correction. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Arkansas Rules of the Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw on the grounds that the appeal is wholly without merit. Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, including a list of all rulings adverse to appellant made by the trial court on all objections, motions, and requests made by either party, with an explanation as to why each adverse ruling is not a meritorious ground for reversal. There were only two rulings that were conceivably decided adversely to appellant during the

course of his case: 1) the denial of his motion for a directed verdict, 2) his objection to the State's efforts to impeach his testimony by using his prior criminal history.

The clerk of this court furnished appellant with a copy of his counsel's brief and notified appellant of his right to file pro se points of appeal, which he has done. For his sole point of appeal, appellant contends that the trial court erred by not instructing the jury on robbery as a lesser-included offense of aggravated robbery. The State has filed a brief in response to appellant's sole point of appeal. We affirm appellant's conviction and grant his counsel's motion to withdraw. We will address, in order, appellant's counsel's two citations of adverse rulings that are without merit and then appellant's one point of appeal.

We agree with appellant's counsel that any argument that the trial court erred in denying appellant's motion to dismiss would be wholly without merit. First, appellant's motion for directed verdict was not sufficiently specific to preserve an argument for appeal. Rule 33.1 of the Arkansas Rules of Criminal Procedure provides in pertinent part:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for directed verdict shall state the specific grounds therefor.

. . . .

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support theverdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

(Emphasis added.) At the close of the State's case, appellant's counsel moved for a directed verdict, contending:

Your Honor, the State having rested, we'd move for a directed verdict on behalf of Mr. Brown. What I'm saying is missing is nothing specifically; however, I would mention that the State has failed to make a prima facie case of aggravated robbery in that on or about September 16th of last year, 2002, that Mr. Brown, with the purpose of committing a theft, did employ or threaten to immediately employ physical force while armed with a deadly weapon.

I'm not pointing out any one specific element that I'm saying is missing; however, that in general and in total, the State has failed to make a prima facie case on that charge.

Appellant's motion did not specify the manner in which the evidence was deficient, and therefore did not satisfy the requirements of Rule 33.1.

Second, in testing the sufficiency of the evidence to determine whether the verdict is supported by substantial evidence, we need only consider the evidence that supports the guilty verdict, and we view that evidence in the light most favorable to the State. Nelson v. State, 84 Ark. App. 373, 141 S.W.3d 900 (2004). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel aconclusion one way or the other, without resorting to speculation or conjecture. Id. Credibility determinations are left to the fact finder. Id.

Arkansas Code Annotated section 5-12-103 (Repl. 1997) provides in pertinent part:

(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:

(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or

(2) Inflicts or attempts to inflict death or serious physical injury upon another person.

Section 5-12-102 (Repl. 1997) defines the offense of robbery as follows:

(a) A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Theft is defined in pertinent part as knowingly taking or exercising unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103 (Repl. 1997).

Here, the victim, Gary Schrider, testified that on September 16, 2002, he was walking in the vicinity of Scott and 21st Streets in Little Rock, between 9:30 and 10:00 p.m., when he was approached by a man whom he subsequently identified as appellant. He said that the man asked him for a cigarette and that he refused because he only had "a couple." He testified that appellant then stated, "Well, what if I just kick your ass andtake your cigarettes?" Mr. Schrider then explained that appellant "came at me," that he pushed appellant, and that appellant "got up and pulled a gun from his waistband and pulled the trigger." He further explained that the gun did not fire. Mr. Schrider testified that he ran to a neighbor's house and rang the doorbell, and that when appellant rounded the corner, appellant said that "he would kill me if I called the police." Mr. Schrider explained that he felt as if he got a good look at appellant because there was a street light and Mr. Schrider had seen him before "around the neighborhood." He stated that he did not know appellant's name at that time but knew his face. He testified that he gave the police officer a description the next day and that he subsequently identified appellant in a photo spread.

This evidence supports appellant's conviction for the offense of aggravated robbery because 1) Mr. Schrider identified appellant as the perpetrator, 2) appellant was armed with a deadly weapon, 3) appellant acted with the purpose of committing a misdemeanor theft of a cigarette, and 4) appellant employed force (he "came at" Mr. Schrider) and/or threatened to employ force (pulled the trigger on the gun even though it did not fire). Moreover, the fact that appellant testified and denied committing this offense is of no consequence because we defer to the fact finder on matters of credibility.

The remaining situation discussed by appellant's counsel as a possible adverse ruling occurred during the State's cross-examination of appellant. During his redirect testimony, appellant testified that he did not have a criminal record. On recross-examination, he stated that he had never been in trouble before and that he had "never been charged with any criminal record." The following exchange then occurred:

Prosecutor: You weren't charged for public intoxication?

Appellant: Yes. I done been -

Defense Counsel: Objection, Your Honor.

Appellant: - charged with public intoxication.

Defense Counsel: May we approach?

The Court: Yes, you may.

Appellant: I'm talking about -

The Court: Hold on just a second, please, Mr. Brown.

(BENCH CONFERENCE:)

Defense Counsel: Well, this is fascinating. The State is getting into something they cannot otherwise bring up. You know, we still function under the rules of what you can impeach someone with. Impeaching someone with a misdemeanor public intoxication is forbidden. I don't know any circumstances, whether someone opens the door or not -

The Court: Well, not to the extent that he volunteered that he didn't have a criminal record. Now just simply being arrested for something is an entirely different matter.

Defense Counsel: Correct.

The Court: Okay.

Defense Counsel: But even -

The Court: The defendant volunteered on direct that he did not have any criminal record.

Defense Counsel: I agree, but what the State has gotten into is, that you were arrested for or charged with.

The Court: Well, I mean, I am - although, he did say on the cross that he had not even been arrested. I really don't believe that he was paying attention to the difference. If it's just an arrest, I don't want to hear about it. If there's any convictions for whatever, he has said that he doesn't have a criminal record, that he volunteered that on direct.

All right. So does he have any convictions?

Prosecutor: I'm going to have to look and make sure.

The Court: All right.

(IN OPEN COURT:)

Prosecutor: Mr. Brown, you were convicted of resisting arrest in the past, correct, back in 1990? Do you recall that?

Appellant: No more than a public intoxication, ma'am.

Prosecutor: Okay. What about - - this was a resisting arrest in 1990.

Appellant: I don't recall that, ma'am.

Prosecutor: Okay.

Appellant: I never had a firearm charge.

Prosecutor: Back in 1998, you were convicted of disorderly conduct.

Appellant: For talking back to the officer, ma'am.

Prosecutor: And public intoxication.

Appellant: Public intoxication.

  Prosecutor: And then in 1999, you were convicted of possession of a controlled substance?

Appellant: No, ma'am, I wasn't.

Prosecutor: Okay. And then in 1998, you were convicted of failure to appear.

Appellant: Yes, ma'am.

Prosecutor: So you have been in trouble before?

Appellant: I haven't been in any trouble - - as far as criminal activity, I haven't been in any trouble like that.

Prosecutor: You don't call resisting arrest, public intoxication, you don't call that criminal?

Appellant: That's not criminal. I don't think so, ma'am.

Prosecutor: Are you saying that just because it's not a felony, it's not criminal?

Appellant: I'm talking about I haven't been in any trouble with a firearm charge or anything like that. I ain't never been to prison.

Prosecutor: But you have been in some trouble even though it didn't have a firearm?

Appellant: Well, I'm quite sure 42 years - -

Prosecutor: Excuse me.

Appellant: Yes. Forty-two years, I'm quite sure everybody been in a little bit of trouble with the law, brush with the law.

Prosecutor: Okay.

Appellant: But I've never been to prison or anything like that; never been to probation. This is the first time I ever been in circuit court in my life.

  Prosecutor: You have been on probation before.

Appellant: That was in municipal court. This is the first time I ever been to circuit court. And I never know - -

Prosecutor: You have been in jail before.

Appellant: Huh?

Prosecutor: You have been to jail before.

Appellant: Sure, I done been to jail before.

(Emphasis added.)

On the above colloquy we agree with appellant's counsel that any argument that this impeachment line of questioning constituted reversible error would be wholly without merit. First, it is not at all clear that the trial court ruled "adversely" to appellant on this line of questioning because appellant did not articulate his actual objection. We have quoted the colloquy in full and emphasized the "objection" and "ruling."

To the extent that the objection was based on the prosecutor soliciting testimony about appellant's prior arrests rather than his convictions, the trial court clearly agreed with the defense that the State was not to delve into that area - only convictions. Moreover, in the line of questioning that followed, appellant denied that he had been convicted on some of the charges the prosecutor inquired about, but there was no additional objection from appellant's counsel, no motion to strike, and no request for a cautionary instruction.

To the extent that appellant was objecting to testimony about a prior conviction for public intoxication, the trial court was correct in ruling that appellant had "opened the door" to that line of questioning by asserting that he did not have a criminal record. As our supreme court explained in Smallwood v. State, 326 Ark. 813, 819, 935 S.W.2d 530, 533 (1996):

This court has recognized that a defendant may "open the door" to an otherwise impermissible inquiry in Larimore, where we said:

We have recognized that otherwise inadmissible testimony may be offered when one party has opened the door for another party to offer it. This is most often permitted when a defendant has been untruthful about a former crime or has brought up otherwise inadmissible character evidence which the State may then rebut.

Larimore, supra (emphasis supplied). By claiming that he was not the "type of person" to threaten someone with a knife, Smallwood placed his propensity towards violence in issue. Thus, the trial court properly allowed the State to question Smallwood about other violent acts or threats. Larimore, supra; Dillion, supra.

(Emphasis in original.) Similarly, to the extent that appellant's counsel was objecting to all testimony about prior convictions, the same "opened-the-door" argument would prevail. In short, if appellant had not opened the door to this line of questioning, the State would have properly been prohibited from trying to impeach him with misdemeanor evidence that did not involve dishonesty under Ark. R. Evid. 609; however, that prohibition was lifted when appellant "opened the door."

We now come to appellant's sole point of appeal: that the trial court erred in not instructing the jury on robbery as a lesser-included offense of aggravated robbery. First,appellant did not preserve this argument for appeal because such an instruction was never requested nor proffered. Moreover, this is not a situation where the defendant's theory of the case was that a robbery took place rather than an aggravated robbery. Rather, appellant's theory was that he did absolutely nothing; i.e., in essence that the State got the wrong man. Consequently, there would be no rational basis for such an instruction. See Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002) (affirming a trial court's decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction; if relying on the defense of complete denial, there is no rational basis for giving instructions on lesser-included offenses).

Appellant's conviction for aggravated robbery is affirmed, and his counsel's motion to be relieved is granted.

Affirmed; motion granted.

Griffen and Roaf, JJ., agree.