Dennis Burnette v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

LARRY D. VAUGHT, JUDGE

DIVISION IV

DENNIS BURNETTE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-287

NOVEMBER 20, 2002

APPEAL FROM THE MILLER COUNTY CIRCUIT COURT

CR-94-448

HON. JOE EDWARD GRIFFIN, JUDGE

AFFIRMED

A jury found appellant Dennis Burnette guilty of aggravated robbery and sentenced him to fourteen years in the Arkansas Department of Correction. He appeals, contending the trial court erred: by refusing to give appellant's instruction modifying AMCI 2d 1201 to require the jury to find that appellant was armed with a firearm, or that he represented by words or conduct that he was so armed; by permitting the State to argue that the jury could convict appellant of aggravated robbery if it found that he used his automobile as a deadly weapon; by restricting appellant during closing arguments from suggesting reasons why the State did not call eyewitnesses to testify who were present during the commission of the offense. We affirm.

Appellant entered an E-Z Mart store in Texarkana at about noon on September 15, 1999. He concealed a container of transmission fluid in his pants and left the store without paying for it. An employee working at the cash register saw appellant shoplifting on the store's surveillance camera. She notified the store manager, at which time he followed appellant to his vehicle. The two men exchanged words regarding appellant's alleged theft, and the manager informed him that he was taking down his tag number. At that point, appellant told the manager, "Well I got something for you," and reached down into the seat area or floorboard area of his car. Appellant pulled out an object that three witnesses testified they believed to be a semi-automatic pistol, and he pointed it at the manager.

Appellant then started to back his car up to drive away, and the manager admonished him to stop and return the merchandise he had stolen. Witnesses testified that appellant then attempted to run over the manager a couple of times, but the car apparently stalled at least once. Appellant pointed what appeared to be a gun out of the window toward the manager a second time before driving away from the store.

The employee testified that she dialed 911 when she saw what she thought was a gun being pulled, and local police officers responded to the scene. Approximately twenty-four hours later, appellant was apprehended by police officers, taken in for questioning, and arrested for aggravated robbery. He initially denied any involvement, but admitted stealing the transmission fluid upon learning that the police had a video tape of the incident. Appellant also admitted threatening the manager to induce him to move away from the car.

The information charging appellant with aggravated robbery stated that he used a deadly weapon, specifically a firearm. However, the State argued in its opening statement and closing argument, over appellant's objection, that the jury could find him guilty if they determined that he used his automobile in such a manner as to be construed as a deadly weapon against the store manager. The trial court denied appellant's motion for a mistrial and later his motion for a directed verdict, and found that there was testimony that appellant had a weapon; and, although appellant'scounsel implied that appellant had some other object, his conduct indicated that he was armed with a gun.

Denial of Appellant's Modified Jury Instruction and

State's Argument Regarding Automobile Used As Deadly Weapon

Appellant's first and second arguments are interrelated and were argued together in his brief. We will also consider them together. The premise of appellant's arguments is that because the State specifically charged him with the use of a firearm in the information; the proof, argument, and jury instructions should be so limited. Appellant's argument has merit only if the commission of aggravated robbery using a firearm is a separate offense from aggravated robbery by means of any other deadly weapon.

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 (Repl. 1997). Appellant was charged with aggravated robbery pursuant to Ark. Code Ann. § 5-12-103 (Repl. 1997), which states in pertinent part:

(a) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:

(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed . . . .

To satisfy the "deadly weapon" element, the State further specified in the information that appellant used a firearm in the commission of a robbery. Three eyewitnesses testified that they saw appellant threaten the store manager with a firearm in order to make him move away from appellant's car as he was attempting to drive away. Appellant, however, testified that he used a pair of vise grips. The State also presented testimony that appellant attempted to strike the manager with his automobile as he was leaving the scene, and asserted in its closing argument to the jurors thatthey could find him guilty of aggravated robbery if they determined that he used his automobile in such a manner as to be construed as a "deadly weapon" against the manager.

It is settled that a trial court must use a model jury instruction, unless it finds that the model instruction does not accurately state the law. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). In the instant case the State proposed AMCI 2d 1201, which tracked the statutory language defining aggravated robbery. Because the information charging appellant specified that a firearm was used, appellant argued that he should be permitted to modify the instruction to require the jury to find him guilty only if it found that he "was armed with a deadly weapon, a firearm, or represented by words or conduct that he was armed with a firearm." (Emphasis added.) Additionally, appellant's proposed instruction did not contain a separate section for the definitions of terms such as "purposely," "physical force," or "deadly weapon," which could include a car if intended to be used to inflict injury. Appellant argued that the modifications tailored the instruction more accurately to the language contained in the information.

The trial court rejected appellant's proposed modified instruction, ruling "that AMCI 1201 as submitted by the State . . . which includes the definitions of physical force, deadly weapon, and purpose at the bottom of that instruction regarding the charge of aggravated robbery will be given and the request for the amended Defendant's Requested Instruction . . . will be denied." Our supreme court has stated that a trial court does not err by rejecting a proffered, non-model jury instruction which accurately states the law, if its substance is covered by other instructions. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999). We will not reverse a trial court's refusal to give a proffered instruction unless there was an abuse of discretion. Dodson v. Allstate Insur. Co., 345 Ark. 430, 47 S.W.3d 866 (2001).

Appellant relies on Renfro v. State, 331 Ark. 253, 962 S.W.2d 745 (1998), where a conviction for the illegal disposal of waste was reversed because the court instructed the jury on three different and alternative means of committing the offense, while only charging the defendant in the information with one of the violations. The court found that the statute described separate offenses and because the prosecutor did not amend the information, it was error to instruct the jury on offenses not charged. The instant case, however, more closely resembles the situation in Cokely v. State, 288 Ark. 349, 705 S.W.2d 425 (1986), cert. denied, 479 U.S. 856 (1986),1 where the supreme court upheld the rape conviction of an appellant where he was charged with intercourse by forcible compulsion, and the court instructed the jury on both intercourse and deviate sexual activity. The court ruled that there is only one crime, rape, with two possible means of commission, and because the evidence supported both acts, the appellant was not prejudiced by the instruction. Likewise, in the instant case there is only one crime, aggravated robbery, with two possible deadly weapons.

It is well-established that "notwithstanding variance in the wording of an information and the proof introduced at trial, reversal is not warranted unless the variance prejudiced substantial rights of the accused." Tackett v. State, 298 Ark. 20, 27, 766 S.W.2d 410, 413 (1989). In the instant case, appellant objected strenuously from the time the State mentioned in its opening statement that there would be additional evidence to establish the deadly weapon element other than proof supporting the use of a firearm. Appellant also argued surprise. However, the record reflects thatappellant knew prior to the trial of the State's intention to offer evidence regarding his attempt to run over the store manager when he was fleeing the scene.

It is clear that the State would have been entitled to amend the information to conform to the proof because such an amendment in this case would not have changed the nature or degree of the crime charged. See Richard v. State, 286 Ark. 410, 691 S.W.2d 872 (1985). Nevertheless, the State never sought to amend the information to include appellant's vehicle. The State presented evidence from multiple eyewitnesses that clearly supports the charge as recited in the information, as well as evidence that appellant also used his vehicle in such a manner as to be considered a "deadly weapon." The crime with which appellant was charged and the one proved are identical. Our supreme court has held that an information is not defective if it "sufficiently apprises the individual of the specific crime with which he is charged to the extent necessary to prepare his defense." Id. at 412-13, 691 S.W.2d at 874. We find that the information in this case meets the applicable requirements. Appellant has failed to show prejudicial harm suffered by the State's offering additional evidence of his guilt of the offense charged -- albeit by separate means of committing the same offense. We hold that the court properly instructed the jury and consequently, there was no error in the State's argument regarding the use of an automobile as a deadly weapon.

Closing Argument Restriction

Appellant's final point on appeal is that the trial court erred by sustaining the State's objection to remarks made by appellant's counsel during closing arguments regarding certain potential witnesses not called by the State. Appellant's counsel suggested that the State failed to call the witnesses because they would have testified that they did not see appellant with a firearm. One of the witnesses in question was called by appellant, and he so testified. The State objected to the inference made in the closing argument on the grounds that it was misleading and speculated to factsnot in evidence. The State conceded that it was not improper to tell the jury that these witnesses were not called by the State, but stated that the comments should be limited to that particular fact. The trial judge sustained the objection and instructed the jury to disregard the comment as to why the State did not call these two witnesses.

A trial court has wide discretion in controlling closing arguments, and this court will not interfere with that discretion absent a manifest abuse of it. Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Nothing in the record suggests any reason why the State did not call the witnesses other than that put forth by the State to the trial court, namely that those subpoenas had not been served. To allow appellant to speculate otherwise would have been impermissibly misleading to the jury. See Rood v. State, 4 Ark. App. 289, 630 S.W.2d 543 (1982). There is no basis for an unfavorable presumption or inference where the witness is equally available to both parties. Id. These witnesses were equally available, and appellant could have called them, but failed to do so.

Appellant argues that the trial court unduly restricted argument by his counsel and improperly instructed the jury to disregard a permissible line of argument. It is proper to argue the issues, the evidence, and reasonable inferences drawn from the evidence during closing arguments. See Leaks v. State, 339 Ark. 348, 5 S.W.3d 448 (1999). Because there was no evidence to support appellant's argument as to why certain witnesses were not called, the trial court did not abuse its discretion by sustaining the State's objection.

Affirmed.

Robbins and Baker, JJ., agree.

1 Although Cokely's conviction was set aside by the federal court, see Cokely v. Lockhart, 951 F.2d 916 (8th Cir.1991), cert. denied, 506 U.S. 904 (1992), the substantive holding by the supreme court is still valid Arkansas law.