Walter Wright v. State of Arkansas

DIVISION II

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN E. JENNINGS, JUDGE

CACR 00-625

January 17, 2001

WALTER WRIGHT APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE MARION HUMPHREY,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Walter Wright was found guilty during a bench trial of committing aggravated robbery and theft of property. He was sentenced to ten years' imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's attorney has filed a motion to be relieved as counsel on the basis that there is no merit to this appeal. We agree and thus affirm appellant's conviction and grant counsel's motion.

Wesley West testified that he was walking home from a friend's house in October 1998 when appellant came up from behind him and hit him on the head with a wrench. West testified that appellant asked him for his money and that he gave appellant the thirty-fivedollars in his wallet. West stated that he had seen appellant around a couple of times before the incident and that he was certain that appellant was the one who hit him that night. In addition, West testified that the cut on his head required four or five stitches. Appellant testified that he and West had gotten into a fight over beer at the friend's house and that they were calling each other names and pushing each other. Appellant admitted that he hit West on the head but not with any object. Appellant stated that his fingernails are generally long and that he might have cut West's head when they were "tussling" such that would have required stitches.

Counsel argues that there are no non-frivolous issues that would support an appeal in this case. Appellant's directed-verdict motion was based on the alleged failure of the State to prove that the wrench was a deadly weapon. Although the wrench was not introduced into evidence and its size was not entered into the record, West demonstrated its size to the court. The fact finder, who is charged with the duty of determining whether the weapon used was a deadly weapon, apparently believed the wrench in this case was a deadly weapon. See Dickson v. State, 230 Ark. 491, 323 S.W.2d 432 (1959). As a corollary to his argument that the wrench was not a deadly weapon, appellant argued in his directed-verdict motion that West did not suffer serious physical injury. However, the test is whether the wrench was capable of causing seriousphysical injury. Sanders v. State, 256 Ark. 605, 509 S.W.2d 295 (1974). This particular wrench injured West to the point that he needed medical attention that entailed several stitches.

Next, the defense objected to the State's calling the wrench a "crescent wrench" when no evidence had been adduced to support that. The State discontinued calling it a crescent wrench from that point on, and appellant can demonstrate no prejudice that resulted from calling the weapon a "crescent wrench."

As part of his closing argument, appellant commented that the case was essentially "a swearing match" between appellant and West. The fact finder assesses and determines credibility and is not required to believe the accused's testimony since he is the person most interested in the outcome of the case. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998); Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997).

Just after the court had pronounced its sentence on appellant, the State sought to introduce several convictions proving appel lant's habitual offender status. Defense counsel objected because appellant had already been sentenced, but the State pointed out that it had orally amended the information. The court allowed the State to introduce the convictions. However, the court did not alter appellant's sentence, and the judgment and commitment order reflects that he was not sentenced as an habitual offender. Appellant can show no prejudice from this ruling.

Finally, although appellant filed a motion to suppress the photo lineup on the basis that it was unconstitutional, neither a hearing nor a ruling was had on the motion. Furthermore, no evidence was adduced at trial regarding the lineup.

Appellant's conviction on both charges is supported by substantial evidence, and we can find no reversible error committed by the trial court. Therefore, appellant's conviction is affirmed and counsel's motion to be relieved is granted.

Pittman and Neal, JJ., agree.