Johnny Craig, Jr. v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION IV
CACR06-170
January 17, 2007
JOHNNY CRAIG, JR.
APPELLANT
AN APPEAL FROM JEFFERSON COUNTY
CIRCUIT COURT
[NO. CR-2005-487-5]
V.
HON. ROBERT H. WYATT, JR., JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED; MOTION TO WITHDRAW
GRANTED
On September 19, 2005, a Jefferson County jury found Johnny Craig, Jr. guilty of two
counts of aggravated assault, criminal mischief, and committing a terroristic act and
sentenced him to a sixty-six-year term in the Arkansas Department of Correction.
Appellant’s attorney has filed a motion to withdraw as appellant’s counsel, and the motion
was accompanied by a no-merit brief, pursuant to Anders v. California, 386 U.S. 738 (1967),
and Ark. Sup. Ct. R. 4-3(j), wherein counsel contends that all rulings adverse to his client
are abstracted and discussed. Appellant was provided a copy of this brief and was notified
of his right to file pro se points for reversal, and appellant has filed nine pro se points. We
agree that an appeal here would be wholly without merit. Accordingly, we affirm
appellant’s conviction and grant counsel’s motion to withdraw.
According to the testimony of Bennie Higgins, appellant shot at Higgins’s car with
a twelve-gauge shotgun on the evening of May 24, 2005. He stated that on that date, he was
married to Roberta Higgins but had been separated for about a year and a half. The two had
three minor children, and Roberta had a teenage daughter, Shambreka, prior to the marriage.
At that time, Bennie owned a 1994 Fleetwood Cadillac, which he had purchased the
previous February for $4500 and was in good running condition.
On May 24, Bennie left work and went by Roberta’s home at 4:00 p.m. He stayed
for an hour, then left and went to a friend’s house. After about three hours, he returned to
Roberta’s home after receiving a call from his son. Bennie had Roberta’s cell phone, and
he used that phone to call the number that called him. A man whose voice he did not
recognize answered. When he returned to Roberta’s house the second time, he stayed for
about two hours. Antonio Alexander was with him at the time. All of the children were at
home under Shambreka’s supervision. Bennie and Antonio left Roberta’s house after the
second visit. Thirty minutes later, Bennie received a phone call from the same person that
he spoke to earlier. He returned to Roberta’s home, fearing for his children’s safety. He was
still on the phone talking to the person as he was driving down an alleyway. As he was
driving, the person said, “Well, here I am.” The person, whom Bennie identified as
appellant, then “popped out of the dark with a rifle and shot at the car.” Antonio was still
in the car at that time. After hearing the gun re-cock, Bennie tried to get away, but he
crashed his car in a ditch across the street. The resulting crash totaled his car. Neither
Bennie nor Antonio was hit by the bullet.
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Shambreka testified about the moments prior to the shooting. According to her
testimony, she was babysitting her younger siblings that evening. Roberta had left her cell
phone with Shambreka. Roberta called Shambreka at least once that evening, and
Shambreka opined that Roberta was using appellant’s phone because appellant’s phone
number appeared on the caller ID. That evening, Bennie came by Roberta’s house and took
Roberta’s phone outside with him. Bennie then brought the phone back into the house and
left. Shambreka then called Roberta and told her that Bennie had stopped by the home.
Roberta returned to her home, and appellant was with her. Shambreka testified that
appellant was upset and that she overheard appellant say, “Tell your kids I’m going to kill
their daddy.” Appellant then left. Appellant later returned and told Shambreka to call
Bennie. She did so using appellant’s phone. Bennie then returned to Roberta’s home.
Shambreka testified that she heard a gunshot soon after, but that she did not see the shooting
because she shut the door after Bennie arrived.
Pine Bluff Police Officer Leslie Lindsay investigated the shooting. She talked to
appellant the evening after the shooting, and appellant signed a statement saying that he was
in Monticello the previous night between 9:00 p.m. and 10:00 p.m. and that he was in bed
at 10:30 p.m. In the statement, he stated that last time he saw Roberta was the evening
before May 24. Lindsay testified that she told appellant that there had been a shooting, but
that she did not tell him why she wanted to talk to him or mention a time frame. She stated
that appellant insisted several times that he was in Monticello between 9:00 and 10:00 p.m.
Gloria Jones, who lives in Monticello, testified that she left work and went home
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between 8:30 and 9:00 p.m. Around 8:45, she tried to call appellant but received no answer.
She tried calling again after she arrived home, and someone answered the phone. She heard
two voices on the other end: a male that sounded like appellant and a female whom she
could not identify. Jones stated that appellant arrived at her home after 10:30 p.m. and did
not have his cell phone with him. While at her house, appellant called his cell phone and
checked his voice-mail messages. The phone records indicate that this occurred at 11:16
p.m. Appellant stayed at her house and left the next morning.
The jury found appellant guilty of two counts of aggravated assault, for which he
received two twelve-year sentences; criminal mischief, for which he received a twelve-year
sentence; and terroristic act, for which he received a thirty-year sentence. The court ordered
the sentences to run consecutively for an aggregate sixty-six-year term in the Arkansas
Department of Correction. Appellant filed a motion to modify the sentence on September
23, 2005, and the court denied the motion after a hearing on October 5, 2005.
An attorney’s request to withdraw from appellate representation based upon a
meritless appeal must be accompanied by a brief that contains a list of all rulings adverse to
his client that were made on any objection, motion, or request made by either party. Eads
v. State, 74 Ark. App. 363, 47 S.W.3d 918 (2001). The argument section of the brief must
contain an explanation of why each adverse ruling is not a meritorious ground for reversal.
Id. We are bound to perform a full examination of the proceedings as a whole to decide if
an appeal would be wholly frivolous. Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915
(2001). If counsel fails to address all possible grounds for reversal, we can deny the motion
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to withdraw and order rebriefing. Sweeney v. State, 69 Ark. App. 7, 9 S.W.3d 529 (2000).
Other than minor evidentiary objections, which were all conceded by appellant at
trial, counsel discusses seven adverse rulings: a pre-trial motion to sever counts, four
directed-verdict motions, and two arguments on appellant’s post-trial motion to modify
sentence.
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1. Motion to Sever
Before trial, appellant filed a motion to sever one of the charges. However, as
counsel notes, appellant never pursued the motion and never obtained a ruling on the
motion, which precludes this court from addressing the issue. See Wicks v. State, 270 Ark.
731, 606 S.W.2d 366 (1980) (requiring that an appellant obtain a ruling on an objection if
he wishes to preserve it for appellate review).
2. Directed-Verdict Motions
Next, counsel discussed the directed-verdict motions. For the two aggravated-assault
charges, appellant argued at trial that the State presented insufficient evidence to show that
he engaged in conduct that created a substantial danger of death or serious physical injury
to Bennie Higgins or Antonio Alexander. A person commits aggravated assault if, under
circumstances manifesting extreme indifference to the value of human life, he purposefully
engages in conduct that creates a substantial danger of death or serious physical injury to
another person. Ark. Code Ann. § 5-13-204(a)(1) (Repl. 2006). Counsel properly cites
Carter v. State, 324 Ark. 249, 921 S.W.2d 583 (1996), where the supreme court affirmed
a conviction for aggravated assault. The evidence there showed that the appellant drove
himself and his co-defendants to the scene of the shooting, fired a gun at the scene, assisted
a co-defendant in retrieving his rifle, and that the victim was in the line of fire and narrowly
escaped injury. Here, the evidence shows that appellant fired a shotgun in the direction of
two people. The State presented sufficient evidence to support appellant’s aggravatedassault convictions.
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Next, counsel discussed the directed-verdict motion for the charge of criminal
mischief. At trial, appellant argued that the State failed to establish that appellant caused the
damage to the vehicle or that the damage was in excess of $500. A person commits criminal
mischief in the second degree if he recklessly destroys or damages any property of another
person. Ark. Code Ann. § 5-38-204(a)(1) (Repl. 2006). The crime is a Class D felony if the
amount of the actual damage exceeds $2500. Here, Bennie Higgins’s testimony established
that appellant shot at his vehicle, causing him to accelerate into a ditch and total his car. His
testimony further established that he purchased the vehicle for $4500 three months prior to
the incident and that the vehicle was still in good running condition. This evidence is
sufficient to support a conviction for Class D felony second-degree criminal mischief.
Finally, counsel discussed the directed-verdict motion for the charge of committing
a terroristic act. At trial, appellant argued that the State failed to establish that he caused
injury to Bennie Higgins’s property. A person commits a terroristic act if he shoots at an
object with the purpose to cause injury to another person or damage to property that is being
operated or occupied by another person. Ark. Code Ann. § 5-13-310(a)(1) (Repl. 2006).
Again, Higgins’s testimony establishes the elements of this crime.
3. Post-trial Motion
Finally, counsel reviews appellant’s post-trial motion to modify his sentence. After
trial, appellant moved to have his sentences to be served concurrently rather than
consecutively and argued that neither the jury nor the State recommended consecutive
sentences. Arkansas Code Annotated section 5-4-403(a) (Repl. 2006) provides in pertinent
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part:
When multiple sentences of imprisonment are imposed on a defendant convicted of
more than one (1) offense . . . , the sentences shall run concurrently unless, upon
recommendation of the jury or the court’s own motion, the court orders the sentences
to run consecutively.
The trial court has the discretion to order sentences to be served consecutively, and
the appellant assumes a heavy burden of showing that the trial judge failed to give due
consideration to the exercise of his discretion in the matter of consecutive sentences. Love
v. State, 324 Ark. 526, 922 S.W.2d 701 (1996). In denying the motion, the trial court stated
that it ordered the sentences to run consecutively because the jury gave appellant the
maximum sentence on each charge. Appellant did not provide much of an argument before
the trial court below, other than noting that his sentence is well above the presumptive
sentence provided in the sentencing guidelines. We hold that there would be no meritorious
appeal based upon this argument.
Appellant also argued in his motion, but not at the subsequent hearing, that his
sentence violated the state and federal constitutional protections and state statutory
protection against double jeopardy. When the same conduct establishes the commission of
multiple offenses, the defendant may be prosecuted for each such offense; however, he may
not be convicted of more than one offense if one offense is a lesser-included of the other
offense. Ark. Code Ann. § 5-1-110(a)(1) (Repl. 2006). While all of appellant’s offenses
are similar and came out of the same impulse, aggravated assault, criminal mischief, and
terroristic act are all distinct offenses, none of which is a lesser-included of any other
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offense. The court did not err in allowing convictions for all three offenses.
4. Pro Se Points
Appellant presents nine pro se points for reversal, but none of them present a
meritorious argument on appeal. First, appellant argues that he was denied the right to face
his accuser. However, no objection based upon the Confrontation Clause was presented to
the trial court, which precludes this court from addressing the issue here. See Roston v.
State, 362 Ark. 408, — S.W.3d — (2005).
In six of his nine points, appellant challenges the testimony of State’s witnesses. In
each case, appellant raises an issue of credibility, and such issues are for the jury to resolve.
See Bush v. State, 90 Ark. App. 373, — S.W.3d — (2005).
In his third point, appellant argues that there was no weapon to charge him with
aggravated assault. Bennie Higgins’s testimony established that appellant shot at him and
Alexander with a shotgun. The fact that the State did not find the gun used is irrelevant.
Finally, appellant argues that he could not have been charged with criminal mischief
because no one was in the vehicle when the police arrived at the scene. Not only was this
argument not made at trial, nothing in the definition of criminal mischief requires anyone
to be near the destroyed property.
The record has been reviewed in accordance with Ark. Sup. Ct. R. 4-3(j) and Anders,
supra. We conclude that there were no errors with respect to rulings adverse to appellant
and that this appeal is without merit. Accordingly, counsel’s motion to be relieved is
granted, and appellant’s convictions are affirmed.
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HART and BIRD, JJ., agree.
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