Donald R. Frazier v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION IV

DONALD R. FRAZIER,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR99-340

OCTOBER 11, 2000

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT,

NO. CR99-992-1,

HON. BERLIN C. JONES, JUDGE

AFFIRMED

Appellant Donald Ray Frazier, Jr., brings this appeal from the Circuit Court of Jefferson County, contending that there was insufficient evidence to convict him of aggravated robbery, residential burglary, and theft of property. Because Frazier did not properly preserve his arguments for appeal, we do not reach the merits of his arguments, and we affirm his convictions.

At a jury trial, Phillip Ashcraft testified that on September 30, 1997, he was robbed in his home at gunpoint. He testified that after he worked the graveyard shift at Union Pacific Railroad in North Little Rock, he was sleeping, when the door to his bedroom opened, allowing light from the hallway to come in, and waking him up. A black male stepped into the room, carrying a sawed-off, double-barreled shotgun. The black male began screaming at Ashcraft to get into the hallway and to lie face down on the floor. Ashcraft then identified Frazier as the person who was pointing the gun at him and repeatedlythreatening to kill him. Frazier did not object to this in-court identification. Ashcraft stated that Frazier was yelling at someone else in the house, and he heard someone rummaging through his gun cabinet, his daughter's bedroom, and the restroom, where Ashcraft's wallet was located.

Ashcraft uncovered his head and looked up after he heard the storm door to his house open. He said he got up from the floor, went to his closet, removed his .22 caliber automatic rifle, and ran out of the back door of his house. He saw three black males standing near a power line located about thirty yards behind his house. He testified that the persons who entered his house held him at gunpoint for approximately five minutes and stole fourteen guns, $202, his wife's jewelry, and a Walkman.

Ashcraft described the person who robbed him as a black male, wearing a light-colored T-shirt, light-colored blue jeans, and white tennis shoes, and standing approximately five feet, ten inches tall with a slim body build and short hair. During cross-examination, Ashcraft stated that in response to a subpoena or a summons, he went to the Youth Detention Center in Pine Bluff and identified Frazier as the person who entered his bedroom and held the gun on him. Frazier did not object to this out-of-court identification.

Michael Jenkins, a patrolman for the Pine Bluff Police Department, testified that he was dispatched to Ashcraft's home on September 30, 1997, in response to a burglary and robbery. Jenkins stated that he was shown the path that the perpetrators allegedly followed, which was toward the power line.

Jamie Dean, also of the Pine Bluff Police Department, testified that he was on patrol the day the robbery and burglary took place, and that he received information that day that a black male was running through the woods behind a Bridgestone Tire Store. He and another officer walked the area on foot and spotted a black male running through the woods. Dean identified Frazier as that person. He stated that Frazier refused to stop after they had yelled at him to do so, and they tackled him. Dean testified that as a result of a search of the area behind the Bridgestone Tire Store, a sawed-off shotgun, a rifle with a scope, and a blood-stained curtain were recovered.

Greg Williams, a crime-scene technician for the Pine Bluff Police Department, testified that he took photographs of the crime scene and the items that had been stolen from Ashcraft's home. Many of the items were found scattered outside Ashcraft's home.

Eugene Butler of the Jefferson County Sheriff's Department testified that when he received a report of a robbery taking place at Ashcraft's home and drove to the area, Frazier was already in custody. At the Pine Bluff Police Department, Butler stated that Frazier was read his Miranda rights, that Frazier said he understood those rights, and that he agreed to be questioned and to undergo a taped interview. Butler stated that Frazier was not promised anything in exchange for his statement.

In the statement to the police, Frazier admitted that he went to Ashcraft's home with two other males, and that when he arrived, he rang the doorbell, received no response, walked to the rear of the house, and got blood on a curtain as he broke out a window. He admitted to entering the home, pointing a sawed-off, double-barreled shotgun at Ashcraftand ordering Ashcraft to lay down on the floor. As he held Ashcraft at gunpoint on the floor, another male rummaged through Ashcraft's home. Frazier then gave the other male the shotgun, and Frazier rummaged through the home. Frazier stated that after they left the home, Ashcraft came outside and fired shots at them as they were running away. After they started running, Frazier remembered that he had inadvertently left the curtain on which he had left the bloodstain at Ashcraft's house, so he ran back to retrieve it. He then stated that he ran behind the tire store. After the State rested, Frazier moved for a directed verdict, and the court denied the motion.

During his testimony, Frazier admitted that he had confessed to the crimes, but stated that he was not telling the truth when he confessed. He said the only reason he admitted to robbing Ashcraft and burglarizing his home was because Butler had told him if he would admit to it, he would be tried as a juvenile and most likely permitted to go home. He stated that he went to Ashcraft's home with two other males, but did so with the intention of playing a "prank." He denied that he went inside Ashcraft's home and that he held a gun on Ashcraft. He stated that after both of the other men entered the home, they called him to the house and gave him some guns. It was at that point, he said, that he realized what was taking place.

After the defense rested, Frazier renewed his motion for a directed verdict, on the "same grounds." The court again denied the motion, and the jury returned a guilty verdict.

Frazier brings this appeal contending that the State did not prove its case beyond a reasonable doubt. He states that "merely being at the geographical area or scene wascertainly insufficient to meet the high standard of proof beyond a reasonable doubt that Appellant knowingly went along, and to the Ashcraft residence, for the purpose of participating in any of the crimes of subject." He also makes the assertion that "subsequent to the date of the incident, Mr. Ashcraft had three defendants `pointed out' to him while at juvenile detention. Thereafter, physical descriptions and identification details became apparently more precise and confident."

We consider a sufficiency-of-the-evidence argument before addressing other alleged trial errors in order to preserve an appellant's right to freedom from double jeopardy. King v. State, 338 Ark. 591, 999 S.W.2d 183 (1999); Welch v. State, 330 Ark. 158, 955 S.W.2d 181 (1997). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Johnson v. State, 326 Ark. 3, 929 S.W.2d 707 (1996); Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995); Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992), cert. denied, 514 U.S. 1018 (1995); Miller v. State, 68 Ark. App. 332, 6 S.W.3d 812 (1999); Pettigrew v. State, 64 Ark. App. 339, 984 S.W.2d 72 (1998). When a defendant challenges the sufficiency of the evidence, we consider only the evidence that supports the verdict. Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994); Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). We also view the evidence in the light most favorable to the State. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). The test is whether there is substantial evidence to support the verdict. Jameson v. State, 333 Ark. 128, 970 S.W.2d 785 (1998); Miller v. State, supra. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty,compel a conclusion one way or another. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998); Jenkins v. State, 60 Ark. App. 122, 959 S.W.2d 427 (1998). Resolution of conflicts in testimony and assessment of the credibility of witnesses is for the fact finder. Mann v. State, 291 Ark. 4, 722 S.W.2d 266 (1987); Stone v. State, 290 Ark. 204, 718 S.W.2d 102 (1986). Furthermore, the jury is not required to believe any witness's testimony, especially that of the accused, since he is the person most interested in the outcome of the case. Ross v. State, 300 Ark. 369, 779 S.W.2d 161 (1989); Huff v. State, 289 Ark. 404, 711 S.W.2d 801 (1986).

After the State rested, Frazier moved for a directed verdict. Defense counsel stated:

At the close of the State's case the defendant makes a motion for a directed verdict of acquittal. In support of that motion for directed verdict, the defendant would assert that the testimony and the evidence that the State has presented is insufficient to support a verdict of guilty by the jury. We believe, under these circumstances, a directed verdict is in order.

The court denied the motion.

After the defense rested, as Frazier renewed his motion for a directed verdict, the following exchange took place:

DEFENSE ATTORNEY: I would like to renew our motion.

THE COURT: Same grounds?

DEFENSE ATTORNEY: Same grounds.

The court again denied the motion.

Arkansas Rule of Criminal Procedure 33.1 states, in relevant part:

A motion for a directed verdict based on insufficiency of the evidence mustspecify the respect in which the evidence is deficient; a motion merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

The Arkansas Supreme Court has stated that a general motion for a directed verdict does not preserve for appeal issues regarding the sufficiency of the evidence. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000); Conner v. State, 334 Ark. 457, 978 S.W.2d 300 (1998); Welch v. State, supra. See also Ark. R. Crim. P. 33.1. In order to preserve a challenge to the sufficiency of the evidence, a defendant must make a specific motion for a directed verdict that advises the court of the exact element or elements of the crime that he contends that the State has failed to prove. Conner v. State, supra.

Because Frazier made a general motion for a directed verdict, failing to state any grounds for his motion, but only asserting that the State had failed to prove its case, we conclude that Frazier's sufficiency challenge is not properly preserved for appeal. Pyle v. State, Conner v. State, and Welch v. State, supra.

Even if we reached the merits of Frazier's case, we would affirm because substantial evidence exists to support the jury's verdict. Frazier admitted in his statement to the police his involvement in the crimes for which he was charged. In contradictory testimony at trial, Frazier claimed that he only admitted as much because Butler had told him if he would confess, he would probably be tried as a juvenile and most likely sent home. As this court has stated, credibility determinations are to be made by the fact finder, and, in this case, we defer to the jury in making those determinations. Stone v. State, supra; Mann v. State, supra.

In his sufficiency argument, Frazier also alleges that Ashcraft's in-court identification of him was tainted by an out-of-court identification of him at the Youth Detention Center. However, Frazier did not object to Ashcraft's in-court identification, nor his referral to his out-of-court identification. This court does not consider an argument raised for the first time on appeal. Pyle v. State, supra. To preserve an issue for appeal, a defendant must object at the first opportunity. Pyle v. State, supra. A party who does not object to the introduction of evidence at the first opportunity waives such an argument on appeal. The policy reason behind the rule is that a trial court should be given an opportunity to correct any error early in trial, perhaps before prejudice occurs. Pyle v. State, supra.

Affirmed.

Robbins, C.J., and Neal, J., agree.