Gerald Lee Lockhart v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

GERALD LEE LOCKHART

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-919

JULY 5, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 98-4554]

HONORABLE MARION ANDREW HUMPHREY, CIRCUIT JUDGE

AFFIRMED

Following a bench trial, the Pulaski County Circuit Court convicted the appellant, Gerald Lee Lockhart, of two counts of sexual solicitation of a minor. Appellant was sentenced to three years' probation, 120 days' incarceration in the Pulaski County jail, and fined $500. Also, appellant was required to register as a sex offender. We affirm.

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 counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Counsel's motion was accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal. The Clerk of this court furnished appellant with a copy of his counsel's brief, and notified him of his right to file a pro se list of points for reversal within

thirty days. Appellant has filed a brief.

Appellant's convictions arise out an incident that took place on September 2, 1998. Jennifer Scott testified that when she was eleven years old, appellant was sitting on the porch of his house when he called out to her and Teresa Anderson, who was seven years old, as they were walking by, "hey, y'all want to have sex?" Teresa Anderson also testified that appellant asked her and Jennifer if they wanted to have sex. Appellant denied making any sexual remarks towards either of the girls. Appellant testified that he had only said to them, "you sure do look pretty today" and "you young ladies better leave." Appellant testified that because of a car accident in 1980 he was unable to perform sexually, and that he had a slight speech impediment from his accident that had required him to learn how to talk again. It had only been in the past year that people had been able to understand him. There were five adverse rulings to appellant during trial.

First, appellant made a motion for directed verdict at the close of the State's case. This motion was denied. However, the motion for directed verdict was not renewed at the close of all evidence. Ark. R. Cr. P. 33.1(b) states that "In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence." (Emphasis added). The supreme court modified Rule 33.1 in 1999 to require a defendant to make a directed-verdict motion in both jury and nonjury trials at the specified times. Thompson v. State, 342 Ark. 365, 28 S.W.3d 290 (2000). Priorto the amendment, when tried without a jury, a defendant was not required to make a directed-verdict motion at the close of all the evidence. Id. The rule now specifically requires the defense to make the motion at the close of all the evidence in nonjury trials as well as jury trials. Id. Such a failure to lodge a motion for directed verdict at the close of all evidence precludes review by this court. See Hayes v. State, 311 Ark. 645, 846 S.W.2d 182 (1993). Thus, as the motion for directed verdict was not renewed at the close of all evidence, the issue is not preserved for appeal.

Second, the trial court denied appellant's motion for a continuance made on the day of trial on the ground that a witness he had subpoenaed, Bobby Coqusette, was not present. Appellant's counsel admitted that the subpoena was not actually served on Mr. Coqusette, but merely left at his door. Also, this was the second time the witness had failed to appear in court. Appellant never stated what Mr. Coqusette's proposed testimony might be, other than the representation that Mr. Coqusette was present at the time of the incident.

A trial court's decision on a motion for a continuance is within its sound discretion and will not be reversed absent an abuse of discretion amounting to a denial of justice. See Rankin v. State, 57 Ark. App. 125, 942 S.W.2d 867 (1997). Appellant has the burden on appeal of proving an abuse of discretion, which requires a showing of prejudice. See id. We find no such abuse of discretion in this case.

Third, Appellant made a motion to exclude the testimony of Jennifer Scott and Teresa Anderson, alleging that based on their age they were unable to understand the meaning of the oath, and unable to accurately relate and testify truthfully about the events. Appellantsubmitted that these alleged deficiencies made them incompetent as witnesses pursuant to Ark. R. Evid. 601. However, appellant never obtained a ruling on his motion. Nor did appellant renew his objections at the time of the witnesses' testimony. In order to preserve a point for appellate review, a party must obtain a ruling from the trial court. Alexander v. State, 335 Ark. 131, 983 S.W.2d 110 (1998). The burden of obtaining a ruling is on the movant; matters left unresolved are waived and may not be raised on appeal. Id. Thus, as appellant failed to obtain a ruling from the trial court on this issue we do not address it as it has been waived on appeal.

Fourth, as appellant began to testify that he thought people who solicited children for sex were terrible, the State objected. Appellant argued that this went to his state of mind. The trial court sustained the objection. We will not reverse a trial court's ruling on admission of evidence "absent an abuse of discretion; nor will we reverse absent a showing of prejudice." Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). We find no such abuse in this case.

Fifth, the trial court ordered that appellant would have to go to Jefferson County as part of his requirements for registering as a sex offender under Ark. Code Ann. § 12-12-901 et. seq. (Repl. 1999). Appellant stated that he lived in White County and was a "shut-in." We find no error.

Turning now to appellant's pro se points on appeal. He first argues that he should get a new trial based on the fact that on cross-examination, Jennifer Scott, testified that she could have been mistaken about what appellant said to her. This argument goes to the sufficiencyof the evidence. As we discussed above, under Ark. R. Crim. P. 33.1, to preserve a challenge to the sufficiency of the evidence on appeal, an appellant must move for dismissal at the close of all evidence. Sharkey v. State, 71 Ark. App. 50, 25 S.W.3d 458 (2000). As appellant did not move for directed verdict at the close of all evidence his argument is not preserved for appeal.

Appellant's second pro se point on appeal concerns the court's denial of his motion for a continuance on the ground that Bobby Coqusette was not present. As we previously stated, the trial court committed no error in denying appellant's motion for a continuance. As a side note, to any extent that appellant's pro se argument can be read as a claim for ineffective assistance of counsel, we hold that as the issue was not raised below; we will not address it on appeal. Alexander v. State, 55 Ark. App. 148, 934 S.W.2d 927 (1996).

Based on our review of the record and the briefs presented to this court, we conclude that there was full compliance with Rule 4-3(j)(1) and that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted and the judgment is affirmed.

Robbins and Griffen, JJ., agree.