Larry Howard v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION II

LARRY HOWARD

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-27

January 16, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION

CR-99-4246

HON. JAMES LEON JOHNSON, JUDGE

AFFIRMED

This is a no-merit appeal. On November 19, 1999, the State filed an information charging appellant with robbery in violation of Ark. Code Ann. § 5-12-102, breaking or entering in violation of Ark. Code Ann. § 5-39-202, and theft of property in violation of Ark. Code Ann. § 5-36-103. Appellant waived his right to a jury trial, and the case was tried before the court on May 30, 2000. Appellant was convicted of all charges and was sentenced to five years' imprisonment for robbery and three years' imprisonment for breaking or entering. The sentence for theft of property was merged with the other sentences, which were to run concurrently.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, the appellant's counsel has filed a motion to withdraw on the grounds that this appeal is without merit. Counsel's motion was accompanied by a brief purportedly referring to everything in the record that might arguably support an appeal, together with a list of adverse rulings, and a record of all motions and requests made by the appellant, and denied by the court, and a statement of the reasons why counsel considers there to benothing in the record which will support the appeal. The State concurs that the appellant's counsel has complied with Rule 4-3(j) and that the appeal has no merit. The clerk of this court furnished the appellant with a copy of his counsel's brief and notified him of his right to file pro se points of appeal, which he did, alleging several grounds for reversal. The State has responded to appellant's points.

The only adverse ruling contained in the record and addressed by appellant's counsel is the denial of the motions for directed verdict. A motion for directed verdict challenges the sufficiency of the evidence. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001). On review, the appellate court views the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and affirms if there is substantial evidence to support the conviction. Id. Substantial evidence is that which has sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Only evidence that supports the conviction will be considered. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999).

Appellant argued there was insufficient evidence to sustain the robbery charge because there was no evidence that appellant used physical force against the victim, Jay Dyke. "A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-12-102. "Physical force" for purposes of the robbery statute is defined as "any bodily impact, restraint, or confinement or the threat thereof." Ark. Code Ann. § 5-12-101.

In Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979), the supreme court noted that the definition of robbery was redefined to shift the focus of the offense from the taking of property to the threat of physical harm to the victim. In Baldwin v. State, 48 Ark. App. 181, 892 S.W.2d 534(1995), this court upheld a robbery conviction, finding that appellant's "jerking" of the victim's hand from the horn, blocking her exit from the car with the large, long duffle bag, and the contact of their bodies as she got out of the car and he got into the car was adequate "bodily impact" to support the robbery conviction.

In the present case, Dyke testified that he found appellant leaving his (Dyke's) garage holding his tools, including a Makita powerless drill, drill bits, a small level, and a Stanley tape measure, in his arms. Appellant threw the tools at Dyke from about ten feet away, hitting him in the shin and causing pain. Not only did Dyke experience pain from the tools being thrown, but he also testified that it impeded his ability to apprehend appellant. Based on these facts, there is sufficient evidence of physical force to sustain the robbery conviction.

Appellant also argued that the evidence was insufficient to support the breaking or entering charge because there was no evidence that appellant entered Dyke's garage. Arkansas Code Annotated section 5-39-202 provides that a person commits the offense of breaking or entering if for the purpose of committing a theft or felony he enters or breaks into any building or structure. Dyke testified that he saw appellant coming out of his garage holding Dyke's tools that had been in the garage. This is sufficient evidence to support the breaking or entering conviction.

Finally, appellant challenged the State's proof on the theft of property charge by stating that there was no evidence that appellant took control over the tools with the intent to deprive Dyke of them because appellant left the tools at the scene. A person commits theft of property when he knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103. The statute makes no exceptions for a temporary deprivation. Hickson v. State, 50 Ark. App. 185, 901 S.W.2d 868 (1995). Here, the evidence demonstrated that appellant was caught walking out of Dyke's garage with histools and did not have Dyke's permission to take the tools. It was not until appellant was confronted by Dyke that he let go of the tools. Based on this evidence, there is sufficient evidence to sustain the theft of property conviction.

Appellant also raises three pro se points of appeal. First, he contends that there was no affidavit or report regarding the crimes at issue to support a warrant for his arrest. He cites Ark. R. Crim. P. 7.1(b), which provides in part:

In addition, a judicial officer may issue a warrant for the arrest of a person if, from affidavit, recorded testimony, or other information, it appears there is reasonable cause to believe an offense has been committed and the person committed it.

As the State points out, there was no evidence that appellant was arrested on a warrant. See Munnerlyn v. State, 292 Ark. 467, 730 S.W.2d 895 (1987)(holding that the court was unable to address appellant's argument that the trial court erred in denying the motion to invalidate the arrest because there was no evidence of record as to the issuance of a warrant of arrest other than the circuit court bench warrant). In addition, there is no evidence that appellant raised this argument below; thus, it is not preserved for our review.

Second, appellant raises ineffective assistance of counsel claims. It is well settled that we may consider the issue of ineffective assistance of counsel on direct appeal only when the appellant has raised it below, either during the trial or in a motion for a new trial. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). Appellant did not raise the claims either during trial or in a motion for new trial; therefore, we do not consider the issue.

Finally, appellant challenges the sufficiency of the evidence on the robbery charge, stating that there was insufficient evidence of physical force. This issue has previously been addressed.

From our review of the record and the briefs presented, we conclude that there has been full compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals andthat this appeal is without merit. Accordingly, we affirm the conviction and grant counsel's motion to withdraw.

Affirmed.

Pittman and Jennings, JJ., agree.