Stanley Earl Garry v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION II

CACR00-475

JANUARY 24, 2001

STANLEY EARL GARRY

AN APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

v. APPELLANT [CR97-1878, 98-1246, 99-2956]

STATE OF ARKANSAS HONORABLE DAVID BOGARD, APPELLEE CIRCUIT JUDGE

AFFIRMED

Appellant, Stanley Earl Garry, was convicted in a bench trial of first-degree battery for which he was sentenced to twenty years' imprisonment in the Arkansas Department of Correction. The trial court also revoked appellant's probation with regard to two other guilty pleas for forgery and possession of a controlled substance. From the revocations, the court sentenced appellant to ten years' imprisonment with respect to the forgery conviction and five years' imprisonment with respect to the possession of a controlled substance conviction. The trial court ordered the revocation sentences to run concurrently but consecutive to the battery sentence resulting in a total of thirty years.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. Sup. Ct. R. 4-3(j)(1) appellant's attorney has filed a motion to be relieved as counsel and a brief stating that thereis no merit to this appeal. Garry has filed a pro se statement in which he raises four points for reversal. Garry argues: 1) that the trial court denied him his sixth amendment right to counsel; 2) that the evidence was insufficient to support a guilty verdict for first-degree battery; 3) that the trial court erred during sentencing by commenting on appellant's prior run-ins with the law; and 4) that the trial court erred by revoking his probation without having copies of his prior convictions. The State agrees that there is no merit to appellant's appeal and recommends that his conviction, revocations, and sentences be affirmed. We conclude that there can be no meritorious issue raised from the rulings that were adverse to appellant during the trial. Accordingly, we grant the motion to be relieved as counsel and affirm appellant's conviction, probation revocations and sentence.

On November 26, 1997, appellant pled guilty to two counts of forgery in the second degree and was sentenced to five years' probation. Appellant later pled guilty to possession of a controlled substance on October 20, 1998, and was sentenced to an additional five years' probation. On August 19, 1999, the State filed a felony information charging Garry with battery in the first degree. On September 13, 1999, the State filed a petition to revoke appellant's probation based on the incident that led to the first-degree battery charge. After a hearing on December 10, 1999, the Pulaski County Circuit Court found appellant guilty of battery in the first degree, ruled that appellant had violated the conditions of his probation, revoked the probation, and sentenced appellant accordingly.

The record reveals that on July 9, 1999, several people were visiting the home appellant shared with Ann Scott. According to Anthony Warthon, they consumed large amounts of alcohol and illicit drugs. Warthon testified that he consumed between eight and ten twelve ounce beers and smoked marijuana and crack cocaine. Appellant gave a similaraccount of his behavior on that evening. Warthon further testified that over the course of the evening, he and appellant got into an argument and Ms. Scott asked them to step outside. Warthon admitted that he started a fight by grabbing appellant by the collar and hitting him on the side of the head. The testimony is confusing as to exactly when in relation to the fight appellant obtained a knife, but the evidence is clear that appellant stabbed Warthon severely enough to leave a gash of sufficient size to allow Warthon's intestines to protrude from it. Warthon testified that because of his level of intoxication he did not immediately recognize that he had been stabbed. According to Warthon, when he saw the knife, he retreated from appellant's porch. Warthon stated that appellant continued to pursue him until Warthon was able to fend appellant off with the legs of a chair that he found in a garbage bin. Warthon testified that he proceeded to walk home after the altercation ended, but that when he discovered the gash in his stomach he returned to appellant's house where Ms. Scott called for medical attention.

At the trial, appellant admitted to the altercation, but claimed that he accidently stabbed Warthon in self-defense. Appellant also claimed that his intoxication compounded his belief that his actions were necessary to defend himself. At the end of the State's case-in-chief and at the conclusion of all the evidence, appellant moved the court for a directed verdict arguing Warthon had admitted to starting the fight and that appellant was only acting in self defense. The court denied both motions and subsequently found appellant guilty of battery in the first degree. The court's decision was apparently based primarily on the testimony of Ms. Scott. Ms. Scott testified that appellant made two attempts to take the knifeoutside. According to Ms. Scott, appellant initially walked in the kitchen, grabbed the knife, and proceeded to go outside to meet Warthon but she and another person intercepted appellant and took the knife from him. Ms. Scott stated that appellant then went outside and sometime later returned to the house and got the knife again. This second time, Ms. Scott did not intercede, but waited until appellant left the house and locked the door. Ms. Scott testified that she then went to the door and saw appellant "stabbing at Anthony" with Mr. Warthon blocking the knife with the chair leg.

The first adverse ruling that we must discuss is the trial court's denial of appellant's motion for a directed verdict. Double jeopardy considerations require us to consider a challenge to the sufficiency of the evidence prior to the review of all other suggested trial errors. Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000). In his Anders brief, appellant's counsel argues that the trial court did not err in denying appellant's motions for directed verdict. We agree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). In determining the sufficiency of the evidence, we review the evidence in the light most favorable to the State and sustain the conviction if there is substantial evidence to support it. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Substantial evidence is evidence that is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. In determining whether there is substantial evidence, we consider only the evidence that tends to support the verdict. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). We do notweigh the evidence presented at trial as that is the province of the fact finder. Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998) Where, as is the case here, the trial is before the bench, the trial judge sits as fact finder. Gray v. State, 311 Ark. 209, 843 S.W.2d 315. A person commits battery in the first degree if with the purpose of causing serious physical injury to another person, he causes serious physical injury to any person my means of a deadly weapon. Ark. Code Ann. § 5-13-201(a)(1) (Repl. 1997). In his motions for directed verdict appellant argued that he was acting in self defense when he stabbed Warthon. A person is justified in using deadly force in self defense if he reasonably believes that the other person is 1) committing or about to commit a felony involving force or violence; or 2) using or about to use unlawful deadly physical force. Ark. Code Ann. § 5-2-607(a)(1) - (2) (Repl. 1997). A person is not justified, however, in using deadly force in self defense if he knows that he can avoid the necessity of using that force with complete safety by retreating. Id. § 5-2-607(b)(1).

Here the evidence was sufficient to support a conviction for battery in the first degree. Appellant does not argue that the State failed to prove the elements of first-degree battery. Rather he argues that he was justified in stabbing Warthon. The evidence is clear that appellant could have successfully retreated. Appellant, in fact, did successfully retreat in his initial failed attempt to obtain the knife. Because we find the court's finding that appellant was guilty of battery in the first degree is supported by sufficient evidence, we also conclude that the revocations of appellant's probations is also supported by sufficient evidence.

The only other ruling below adverse to appellant was the trial court's refusal to allowhim to change counsel on the day of his bench trial. We find no error.

Immediately before the bench trial, appellant requested that the court allow him to obtain another attorney. Appellant stated that his sister had just come into town and that she wanted him to get another attorney to represent him. The court denied appellant's request and proceeded with the trial.

Our supreme court has held that such a motion to change counsel is properly treated as a motion for continuance because a change of attorneys so close to trial would require the granting of one. Edwards v. State, 321 Ark. 610, 906 S.W.2d 310 (1995). The refusal to grant a continuance in order for the defendant to change attorneys rests within the discretion of the trial judge, and the decision will not be overturned absent a showing of abuse. Cooper v. State, 317 Ark. 485, 879 S.W.2d 405 (1994). The burden of establishing such abuse rests squarely on the shoulders of the appellant. Edwards, supra.

Our courts have long recognized that the right to counsel of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Leggins v. State, 271 Ark. 616, 609 S.W.2d 76 (1980). If a change of counsel would require the postponement of trial because of inadequate time for a new attorney to properly prepare a defendant's case, the court may consider such factors as the reasons for the change, whether other counsel has already been identified, whether the defendant has acted diligently in seeking the change, and whether the denial is likely to result in any prejudice to defendant. Leggins, supra.

Here, appellant did not give any reasons for a change other than the presence of hissister, had not identified other counsel, and did not state that he had been looking. In such a situation, the trial court did not abuse its discretion in denying appellant's motion to change counsel.

In his pro se statement appellant argues that the trial court did not take into consideration appellant's intoxicated state at the time of the crime. Appellant cites cases from other jurisdictions to support his contention that the State should have considered his intoxication. However, in White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986), our supreme court determined that the common-law rule allowing the use of voluntary intoxication as a defense no longer applies in Arkansas, thus voluntary intoxication is not a valid defense to any criminal charge in this state. Therefore, the trial court did not err in failing to consider appellant's intoxication in its ruling.

Appellant's next point on appeal is that the trial court erred during sentencing by making a comment about his prior criminal record. During sentencing, the judge stated, "You know, there's some people Mr. Garry, in this world, that just don't ever learn. You are one of those, I suppose, apparently."

Appellant did not object to the statement at the time it was made and has not stated the remedy he is now seeking from this court. It is well settled that arguments not raised at trial will not be addressed for the first time on appeal. Ashlock v. State, 64 Ark. App. 253, 983 S.W.2d 448 (1998).

Appellant's final point on appeal is that the trial court erred in revoking his probation absent certified copies of his prior convictions. We note that one of the ways to prove aprior conviction when sentencing a defendant as a habitual offended is to present a certified copy of the record of a previous conviction. Ark. Code Ann. § 5-4-504(b)(1). In the present case, however, appellant was not sentenced as a habitual offender. Instead, appellant's probation was revoked. The record reveals that after the sentence had been handed down the prosecutor told the court, "And, Your Honor, I will have those certified copies of his prior convictions." Appellant again failed to object to the fact that the State did not present the certified copies at the bench trial. Arguments not raised at trial will not be addressed for the first time on appeal. Ashlock, supra.

From the review of the record and the brief before us, we find the appeal to be without merit. Counsel's motion to be relieved is granted and the judgment is affirmed.

Jennings and Roaf, JJ., agree.