Avery Ward v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-344

December 12, 2001

AVERY WARD APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

At a bench trial Avery Ward was found guilty of aggravated robbery. He was sentenced as an habitual offender to serve ten years in prison. Ward argues on appeal that the trial court erred in denying his motion for a directed verdict because the State failed to prove his intent to commit theft. We affirm.

John Harper, a taxi cab driver, testified that he picked appellant up to go to a particular address but that appellant changed his mind and would not provide an exact location to whichhe wished to be driven. Harper stated that appellant seemed nervous and was wearing heavy overalls and a woman's wig. According to Harper, appellant asked him how much money he had made that day. Harper had replied that he had only made thirty-five or forty dollars. Harper testified that appellant said, "Well, I've got this weapon, and I'll handle that" and that appellant started "coming out" with a weapon that he had concealed in his pants. Harper stated that he saw the stock of a rifle. About that time, a police car pulled in behind them. Harper jumped out of his cab and ran to the police officers for help. On cross-examination, Harper testified that he had been robbed perhaps a dozen times and that it had made him kind of skittish.

Officer Calvin Martin, one of the officers in the patrol car that had pulled up behind the taxi cab, testified that Harper ran toward him screaming that he had been robbed. Martin stated that appellant had a Remington .22-caliber rifle inside his overalls and 82 rounds of ammunition in his pocket.

Appellant testified that he was looking for money to pay his cab fare when Harper saw his weapon and thought that he was reaching for it. He stated that when he sat down, the rifle stuck out the top and bottom of his pants leg. Appellant explained that he had the rifle with him because his uncle had invited him to go hunting. He said that he had told Harper he had a gun and that itwas hurting his side but that he had explained that it was not a robbery. Appellant denied asking Harper how much money he had earned that day and denied telling him that he would "take care of that." He further explained that he had on a wig because he had been to a party the previous day.

Appellant argues that, "I'll handle that" is too equivocal to amount to circumstantial evidence of his guilt and that something more indicative of a threat to use physical force is necessary.

We conclude that the issue of the sufficiency of the evidence has been waived. Arkansas Rule of Criminal Procedure 33.1(b) (2001) provides that in a nonjury trial, the defendant must move for dismissal at the close of all the evidence. Here, appellant moved for a directed verdict at the close of the State's case but failed to renew his motion at the close of all the evidence. See Love v. State, 324 Ark. 526, 922 S.W.2d 701 (1996).

Affirmed.

Pittman and Vaught, JJ., agree.