Willie Britton v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

WILLIE BRITTON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-00176

OCTOBER 31, 2001

APPEAL FROM PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION

CR2000-1768

HON. JOHN LANGSTON, JUDGE

AFFIRMED

Willie Britton, the appellant, was convicted by a jury of aggravated robbery and theft of property. Britton was identified as the driver of a vehicle in which two of the three other suspects escaped after an unsuccessful attempt to steal a safe in a home-intrusion robbery. Britton was sentenced to ten years on aggravated robbery and three years on theft of property, to be served consecutively. Britton appeals claiming that the evidence is insufficient to support the verdicts. Because Britton's argument is not preserved for appellate review, we affirm.

On March 31, 2000, Edith Gordon and her children were in her home in North Little Rock, when three men entered the home. One man, later identified as Carl Cummins, was armed with a pistol and proceeded to pressure Ms. Gordon to open a safe that was located in the house. When shewas unable to open the safe, two of the men picked up the safe and carried it from her home at which time Cummins's gun discharged, firing one shot. As Ms. Gordon pursued the men outside her home, they dropped the safe in a neighbor's yard and continued down the street and got into a white vehicle parked at the corner approximately four houses down from Ms. Gordon's house. Cummins then exited the house and ran down the street but was eventually caught and detained by the neighbors until the police arrived.

Ms. Gordon identified Britton as the driver of the getaway car, stating she knew him to be a friend of her husband and that she had seen him with the vehicle on other occasions. Britton was contacted and taken to the police department where he gave a statement in which he admitted that he knew Cummins, the suspect with the pistol, and that he also knew Ms. Gordon's husband. At trial, Ms. Gordon and two of her neighbors identified Britton as the driver of the white getaway car. After Britton's motion for directed verdict was denied, he was found guilty by the jury of both aggravated robbery and theft of property.

On appellate review, this court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). When this court reviews a challenge to the sufficiency of the evidence, the court will affirm the conviction if there is any substantial evidence to support it, viewing the evidence in the light most favorable to the State. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Stephenson v. State, 334 Ark. 520, 975 S.W.2d 830 (1998).

Britton argues that there is insufficient evidence to support the verdict of guilty of aggravatedrobbery and theft of property, contending there was no way that the witnesses could have identified him as the driver of the vehicle because he was not at the scene. The State argues that Britton's sufficiency challenge is barred because the argument that his conviction was based upon a "legally faulty identification" was not made at the trial court level, or in the alternative, that substantial evidence supports the aggravated robbery and theft convictions.

In order to preserve a challenge to the sufficiency of evidence, an appellant must make a motion for directed verdict that advises the trial court of the exact element of the crime that the State has failed to prove. Fultz v. State, 333 Ark. 586, 972 S.W.2d 222 (1998); see Ark. R. Crim. P. 33.1(a) (2000). A general motion that merely asserts that the State failed to prove its case is inadequate to preserve the issue for appeal. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Here, Britton's motion for directed verdict at the close of the State's case only challenged the sufficiency of the evidence without specifying the elements that the State failed to prove. Consequently, Britton's argument is not preserved for appellate review.

Nonetheless, even if we were to reach the merits of Britton's sufficiency argument, we would affirm. Three eyewitnesses, including Ms. Gordon, testified that Britton was the driver of the getaway car. Since the trier of fact determines the credibility of a witness's testimony and is free to believe all or part of the testimony, this Court cannot say that Britton's conviction is unsupported by substantial evidence. See McFerrin v. State, supra; Tisdale v. State, 311 Ark. 200, 843 S.W.2d 803 (1992) (holding unequivocal testimony identifying the appellant as the culprit of a crime is sufficient to sustain a conviction).

Affirmed.

Baker and Robbins, JJ., agree.