Ethan Eric Torrence v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

Olly Neal, JUDGE

DIVISION I

CACR00-259

JANUARY 17, 2001

ETHAN ERIC TORRENCE

AN APPEAL FROM THE IZARD APPELLANT COUNTY CIRCUIT COURT

v. [CR97-57]

STATE OF ARKANSAS HONORABLE JOHN DAN KEMP, APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant Ethan Eric Torrence was convicted in a bench trial of possession or use of weapons by incarcerated persons. He was sentenced to seventy months in the Arkansas Department of Correction and ordered to pay $150 in court costs. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's counsel has filed a motion to withdraw and a brief stating that there is no merit to the appeal. Counsel's no-merit brief refers to everything in the record that might arguably support an appeal, including the denial of appellant's directed verdict motions and the disposition of appellant's motion for discovery and motion to suppress the evidence. Appellant has not filed any pro se points, as contemplated by Rule4-3 (j)(2). We conclude that there are no meritorious issues raised from the rulings that were adverse to appellant. Accordingly, we grant counsel's motion to withdraw and affirm appellant's conviction and sentence.

The appellant is an inmate with the Arkansas Department of Correction. On December 8, 1997, prison officials found a sharpened device in appellant's pants pocket during a `shakedown' of inmate barracks. Tommy Cleveland, Criminal Investigator with the Arkansas State Police, testified that during his investigation of the December 8 incident, appellant gave a statement after waiving of Miranda rights. In his statement to Cleveland, appellant admitted that a shank was found in his pants pockets, but denied that he knew that the shank was there. Appellant stated that he had an earache on the night prior to the shakedown, which required him to take Tylenol 3, and that if he knew that the shank was in his possession, he would have had an opportunity to get rid of it. Appellant also informed Cleveland that another inmate named Kenneth Shibley put the shank in his pocket without his knowledge. However, when Cleveland later interviewed Shibley and asked Shibley to draw a picture of the shank, Shibley's drawing did not match the actual shank taken from appellant's pocket. Cleveland testified that although Shibley initially stated that Shibley put the shank in appellant's pocket the night before the incident, Shibley later recanted his statement and informed police that appellant had told him what to say.

Sergeant Lyndal Cooper, field utility sergeant at the Arkansas Department of Correction North Central Unit, testified that he was the officer who physically shook appellant's pants when the sharpened device fell out of appellant's pants pockets. Coopertestified that the device appeared to be a `sharpened down' spoon handle and that inmates would not be allowed to possess such a device under the rules and regulations of the Department of Correction. Cooper further testified that appellant had no lawful authority to possess a sharpened down spoon, and that it is reasonably common for a sharpened down spoon to be used as a weapon. Sarah McQuilliams, Warden at the North Central Unit of the Arkansas Department of Correction, also testified that the device found in appellant's clothing is considered a weapon and that she knew of no lawful use for the device in the penitentiary. McQuilliams referred to the device as a `shank' by prison terminology and stated that a shank made of metal could cause very serious damage.

During his testimony at trial, Kenneth Shibley again stated that he placed the sharpened down spoon in appellant's pockets on the night before the shakedown and that the spoon was used as a nail file. Shibley further stated that he was coerced into telling Investigator Cleveland that the spoon did not belong to Shibley. During his rebuttal testimony, however, Cleveland testified that he did not threaten or make promises to Shibley when he took Shibley's statement. Cleveland testified that after he informed Shibley that Shibley's drawing of the shank did not match the actual shank found, Shibley then informed Cleveland that appellant had approached him and told him what to say. At the close of the State's case and all of the evidence, appellant moved for a directed verdict on the charge against him. Following arguments by both counsel, the trial court denied the motions.

The first adverse ruling against appellant that we must discuss is the trial court's denial of appellant's motions for directed verdict. A motion for directed verdict is achallenge to the sufficiency of the evidence, which the appellate court considers before any other points on appeal. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999).

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). 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, the appellate court considers only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999).

Appellant was charged with possession or use of weapons by incarcerated persons in violation of Arkansas Code Annotated section 5-73-131 (Repl. 1997). Section 5-73-131 provides in relevant part:

(a) A person commits the offense of possession or use of weapons by incarcerated persons if, without approval of custodial authority, he uses, possesses, makes, repairs, sells, or otherwise deals in any weapon, including, but not limited to, any bomb, firearm, knife, or other implement for the infliction of serious physical injury or death and which serves no common lawful purpose, while incarcerated in the Department of Correction, the Department of Community Punishment, or a county or municipal jail or detention facility.

In the case at bar, appellant argued to the trial court that the State failed to prove that the object found in his clothing served no common lawful purpose. Appellant argued that "there was no testimony from any witnesses that this device was to be used for anything but a finger nail and toenail cleaner serving a common lawful purpose, and certainly notestimony that he intended to use it as a weapon." Appellant further argued that he was not aware that the object was in his possession and that Shibley, in fact, claimed that the object belonged to him. We point out, however, that the State presented testimony from two prison officials who stated that according to prison rules and regulations, the sharpened down spoon could serve no lawful purpose if found in the hands of an inmate and that a sharpened down spoon would be considered as a weapon that could cause serious damage. The State further noted that Shibley informed police that appellant asked Shibley to lie for him and that Shibley was unable to draw a picture of the device that matched the actual device found in appellant's clothing.

Although appellant argued that Shibley established that the device did not belong to appellant and that Shibley placed the device in appellant's pant pockets without appellant's knowledge, the trial court sitting as fact-finder was not required to believe the evidence presented by appellant over that of the State. The fact-finder may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Based on the foregoing, we conclude that there was substantial evidence to support appellant's conviction.

Appellant's counsel has also abstracted two written motions filed by appellant that might arguably support an appeal. Prior to trial, appellant filed a motion for discovery and a motion to suppress the evidence. However, at a pre-trial hearing held February 16, 1999, appellant informed the trial court that the State had complied with its discovery requirementsand that he wished to withdraw his motion to suppress. Furthermore, even if we chose to review the merits of these motions, the record does not show that the trial court made a ruling on them. The appellate court will not review a matter on which the trial court did not rule, and a party seeking to raise the point on appeal concerning a ruling has the burden to obtain a ruling. Vanesch v. State, 70 Ark. App.277, 16 S.W.3d 306 (2000).

The record has been reviewed in accordance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to the appellant and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Pittman and Jennings, JJ., agree.