Timothy Deshun Bohanon v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOSEPHINE LINKER HART, JUDGE

DIVISION IV

TIMOTHY DESHUN BOHANON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-804

April 25, 2001

APPEAL FROM THE SEVENTH DIVISION OF THE PULASKI COUNTY CIRCUIT COURT

[NO. CR99-4733]

HONORABLE JOHN B. PLEGGE, CIRCUIT JUDGE

AFFIRMED

Following the trial court's finding that appellant, Timothy Deshun Bohanon, was guilty of aggravated robbery, kidnaping, and theft of property, he was sentenced to forty years' imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. R. Sup. Ct. 4-3(j)(1), appellant's counsel filed a motion to withdraw as appellant's attorney, alleging that this appeal is without merit. Counsel presented a brief stating that there were no rulings adverse to appellant. Commensurate with the instructions given by the clerk of this court, appellant filed a pro se statement of points for reversal in which appellant makes the following arguments: (1) he was deprived of effective assistance of counsel in violation of the Sixth Amendment; (2) the court erred in finding him guilty on both aggravated robbery and theft because the latter is a lesser-included offense of the former; and (3) his sentences exceeded that which was prescribed by statutory law. We find no error of law andaffirm.

A felony criminal information was filed on December 29, 1999, alleging that on September 29, 1999, appellant, while armed with a gun, committed the following offenses: aggravated robbery, kidnaping, attempted rape, and theft. The matter proceeded to a bench trial on March 15, 2000, where the victim, investigating police officers, and forensic investigators testified.

The victim, a female, testified that on September 29, 1999, while she sat in her vehicle, which was parked in a local university's parking lot, studying for an upcoming examination, Bohanon approached her vehicle. Although she noticed him approaching, she remained calm because she thought he was also a student. Bohanon, however, reached into the vehicle through the opened, driver's-side window, positioned a gun against the victim's neck, and ordered her to "Move over, bitch, I ain't playing." Bohanon demanded all of the victim's money, and she gave him $50, her wallet, and her credit cards. Despite her pleas for freedom, Bohanon kept her in the vehicle and began rubbing her between her legs and asked her if she was "going to give him head." She said "no," and Bohanon took no further action in that regard. Eventually, Bohanon drove his captive from the university's parking lot, and as they passed the one-way exit from the campus, she freed herself by jumping from the moving vehicle. The victim also testified that she considered her vehicle to have had a value in excess of $2,500 and identified Bohanon as the assailant.

The trial court heard the testimonies of several university police officers, who

acknowledged the victim giving an incident report and described their locating the stolen vehicle at a local automobile repair shop. The testimony of another police officer explained the taking of Bohanon's fingerprints during intake at the county detention facility, and a forensic expert, who opined that the fingerprints in the stolen vehicle matched Bohanon's prints.

At the conclusion of the State's case, the defense moved for a directed verdict, which was denied, and appellant, having no additional evidence to present, also rested. The trial court, sitting as the finder-of-fact, found Bohanon guilty of all charges except attempted rape, and sentenced him to serve the following sentences in the Arkansas Department of Correction: twenty years for robbery, twenty years for kidnaping, ten years for theft, the robbery and kidnaping sentences were to be served consecutively, and the theft sentence was to be served concurrently. From these convictions and sentences, comes this appeal.

I. Ineffective assistance of counsel

Bohanon first argues in his pro se statement of points that he was deprived of his Sixth Amendment right to effective assistance of counsel. Appellee responds by arguing that Bohanon failed to raise the issue before the trial court and, therefore, he is barred from raising that issue on appeal. See Kanig v. State, 321 Ark. 515, 905 S.W.2d 847 (1995). We agree with appellee and affirm on this point.

II. Lesser-included offense

Bohanon next argues that his sentences were excessive inasmuch as the related counts in the information should have been considered as one criminal episode. Specifically, heargues that the trial court violated Ark. Code Ann. § 5-1-110(a)(5) (Repl. 1997), by finding him guilty of aggravated robbery, kidnaping, and theft of property because his conduct constituted an offense defined as a continuing course of uninterrupted conduct. We, however, find no merit to this argument.

Our supreme court in Britt v. State, 261 Ark. 488, 493, 549 S.W.2d 84, 86 (1977), interpreted the aforementioned statute to operate in accord with the common-law definition of continuing course of conduct as given in Blockburger v. United States, 284 U.S. 299, 302 (1932): "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately. . . . If the latter, there can be but one penalty." Furthermore, for this statutory provision to be applicable, the offense itself must be "defined as a continuing offense." Smith v. State, 296 Ark. 451, 454, 757 S.W.2d 554, 557 (1988). Commensurate with these principles, the trial court did not violate Ark. Code Ann. § 5-1-110(a)(5), because aggravated robbery, kidnaping, and theft of property constitute individual prohibited acts and none of these offenses are defined as a continuing offense. Accordingly, we also affirm on this point.

III. Excessive sentences

In addition, Bohanon argues that his sentences were in excess of that which is prescribed by statutory law. However, the sentence range for aggravated robbery is not less than ten years and not more than forty years or life, the sentence for kidnaping is also is not less than ten years and not more than forty years or life, and the sentence for theft of property valued at least $2,500 is not less than five years and not more than twenty years. See Ark.Code Ann. §§ 5-4-401(a) (Repl. 1997), 5-11-102(b) (Repl. 1997), 5-12-103(b) (Repl. 1997), 5-36-103(b)(1) (Repl. 1997). Furthermore, so long as the term of imprisonment is within the range prescribed by statute and the conviction is otherwise lawful, we will not reverse merely because a criminal defendant believes his sentence was excessive. See McClish v. State, 331 Ark. 295, 298, 962 S.W.2d 332, 334 (1998). In the case at bar, we agree with appellee that Bohanon's sentences for his various convictions fall within the range prescribed by statutory law, and we, therefore, affirm on this point as well.

IV. Dismissal of counsel

Finally, we have reviewed counsel's brief and abstract and agree that none of the rulings adverse to Bohanon provided a meritorious ground for reversal. Consequently, we grant counsel's motion to be relieved as counsel and affirm appellant's convictions.

Affirmed.

NEAL and BAKER, JJ., agree.