Hosie Gant v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 99-546

April 25, 2001

HOSIE GANT APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN LANGSTON

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Hosie Gant was found guilty of first-degree murder during a bench trial, and he was sentenced to thirty years in prison. His attorney has filed a motion to withdraw as counsel and a brief stating that there is no merit to the appeal. Although appellant was notified of his right to file a pro se brief, he chose not to do so. This court found in its November 8, 2000, opinion that counsel's brief at that time did not satisfy the requirements of Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of theArkansas Rules of the Supreme Court and Court of Appeals. This appeal follows after rebriefing was ordered. We conclude that there are no meritorious issues raised from the rulings that were adverse to appellant. Accordingly, we grant counsel's motion to withdraw and affirm appellant's conviction and sentence.

The trial court denied appellant's motions for a directed verdict. Double jeopardy considerations require this court to consider a challenge to the sufficiency of the evidence before all other points raised. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). We find no error in this ruling and affirm.

On appeal, we treat a motion for a directed verdict as a challenge to the sufficiency of the evidence and will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). The finder of fact may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

Appellant's conviction resulted from the stabbing death of Milton Jefferson, known as "Little Bo," on September 7, 1997. The testimony presented at trial established that appellant, the victim, and several other men often sat in chairs underneath sometrees near Frazier Pike to talk and joke around with each other. According to James Akins and Larry Neyland, the victim approached appellant and began teasing him about loaning money to a man not present. Akins and Neyland stated that appellant threatened to kill the victim before pulling a knife on him and that the victim picked up a chair and held it in front of him. Appellant denied threatening the victim and, instead, maintained that the victim was angry at him for not loaning him money and that the victim hit him with the chair. Further, appellant admitted that he stabbed the victim but contended that he did so in self-defense. We defer to the jury's determination on the matter of witness credibility. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999). We agree with counsel that substantial evidence supports the trial court's decision.

Counsel maintains that there were seven rulings adverse to Gant's position. First, Akins testified that a man across the street yelled at appellant, "Don't do that." Counsel objected to this as hearsay. Hearsay is defined by Ark. R. Evid. 801(c) as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The trial court was correct in its ruling because a statement is not hearsay when the statement is offerednot for its truth but merely to show the fact of the assertion. Owens v. State, 318 Ark. 61, 883 S.W.2d 471 (1994).

Second, counsel asked Akins whether the people across the street at Simmons Grocery would have been able to see what happened. The State objected, and the trial court agreed with the State that a conclusion was being elicited that was outside the knowledge of the witness. See Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). The trial court was correct. Defense counsel rephrased the question without further objection and got across his point that the people at Simmons Grocery had a clear view of the area.

Third, defense counsel objected to Akins's testimony that the victim was drunk. No ruling was obtained since the prosecutor promptly rephrased the question. Defense counsel stated in his brief that he did not object to the rephrased question because he knew it would come up later in the trial. Moreover, appellant's counsel had earlier read from Akin's statement that the victim was drunk. The testimony was therefore cumulative.

The fourth adverse ruling came when Sergeant Holloway testified that he had interviewed appellant's family to which appellant objected based on hearsay. In response the trial judge stated that he would not consider hearsay. So the premature objection was, in effect, sustained.

Fifth, appellant objected to Neyland's testimony that appellant's daughter told him not to tell the police what happened. A statement is not hearsay when it is offered only to show the fact of the assertion. Owens, supra. We will not reverse a trial court's ruling on a hearsay question unless the appellant can demonstrate an abuse of discretion. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The evidence was relevant, and the trial court's ruling was correct.

The sixth adverse ruling was when appellant objected to Neyland's demonstration of how the victim held the chair during the event. The circumstances of a bench trial are different with respect to relevant evidence because the judge is better equipped to sort out what is pertinent to the issue at hand. Walls v. State, 336 Ark. 490, 986 S.W.2d 397 (1999). The trial court has wide discretion on rulings concerning admissibility of evidence, and this court will not reverse such a ruling absent an abuse of discretion. Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). There was no abuse of discretion here.

Finally, the trial court sustained the State's objection to Officer White's testimony that appellant was on his way to the police station to surrender. The trial court's ruling was correct because Officer White's answer called for a conclusion.

We conclude that counsel has complied with the rules and that the appeal is without merit. Counsel's motion to be relieved is granted, and the judgment is affirmed.

Bird and Griffen, JJ., agree.