Alexander Davison v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

ALEXANDER DAVISON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-342

JULY 3, 2002

APPEAL FROM PULASKI COUNTY CIRCUIT COURT

[NO. CR1999-2365]

HONORABLE LEON JOHNSON, CIRCUIT JUDGE

AFFIRMED

Alexander Gerard Davison appealed to circuit court from his convictions in municipal court for resisting arrest and fleeing. After a bench trial, the trial court found Davison guilty of both offenses and sentenced him to one year of probation. 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, Davison's counsel filed a motion to be relieved as his attorney, alleging that this appeal is without merit. Counsel has also filed a brief in which all adverse rulings are abstracted and discussed.

The clerk of this court attempted to furnish Davison with a copy of counsel's brief and to notify him of his right to file pro se points for reversal within thirty days at the address the attorney provided in the Certificate of Service in the motion to be relieved as counsel. The package was returned marked "no such number." The clerk called Davison's attorney and obtained a new address to which the package was then mailed. However, this time the package was returned marked "Unclaimed." Davison is not incarcerated and because his attorney has no other address for him, the clerk had no other way of notifying him about the appeal. Davison has not filed any pro sepoints for reversal.

At trial, the following evidence was presented. Little Rock Police Officer Christian Sterka testified that he and Officer Jerry Best responded to a domestic disturbance call at 2414 South Arch Street. When they arrived, an unidentified female pointed to a green Escort that was leaving the house and stated that they were the people involved in the disturbance. The officers followed the vehicle and pulled it over at 21st and Izard Streets, where they made contact with Davison and his wife.

When Sterka ran a check on Davison's name, he got a return indicating that there was a felony warrant out for Davison in Washington County. The officers escorted Davison to Sterka's marked police vehicle and asked him to get inside, but Davison refused. Davison asked the officers why he needed to get in the car, and the officers replied that they wanted to continue their investigation and that they would like him to sit inside the car for their safety as well as his. Before the officers were able to get Davison inside the car, they received information from Washington County confirming that there was an outstanding felony warrant for Davison. At that point, Sterka testified that he and Best asked Davison to place his hands on the car, which he refused to do. When Sterka again requested that Davison place his hands on the car, Davison asked if he was being arrested, and Sterka testified that he told Davison that there was a warrant for him. Davison then pulled his hands off the car and asked the nature of the warrant. Sterka testified that he and Best again tried to get Davison to put his hands on the car or have a seat in the car, but that he refused to comply.

Sterka and Best attempted to take Davison into custody and place handcuffs on him, and a struggle ensued, where Davison tried to pull away from the officers, and Best was knocked down as they tried to get him to the ground. Sterka testified that they applied a burst of pepper spray toDavison and again tried to take him into custody, but Davison continued to struggle and then got up and ran from the officers. According to Sterka's testimony, Davison fell down as he was running and broke his arm, but when the officers tried to take him into custody, he again got up and ran away. Davison ran from the officers for approximately another block, where he was finally apprehended.

In his testimony, Davison denied that the officers told him that there was a warrant for his arrest. Davison testified that he asked the officers if he was under arrest several times, but that they just told him to get into the car. Davison denied struggling with the officers and testified that they sprayed him with the pepper spray when he had his arms up to let them know that he would not try to do anything. Davison also testified that the officers sprayed him again after he pulled away and that someone shoved him to the ground, where he broke his arm.

The first rulings adverse to Davison were the denial of his motions to dismiss. A motion for a directed verdict, or in a non-jury trial, a motion for dismissal, is a challenge to the sufficiency of the evidence. Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). Davison made a motion to dismiss the charges at the close of the State's case and renewed his motion at the close of all of the evidence. However, his motions only asserted that the State had failed to make a prima facie case in regard to the alleged charges. According to Ark. R. Crim. P. 33.1(b) (2002), the "motion for dismissal shall state the specific grounds therefor." "A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense." Ark. R. Crim. P. 33.1(c) (2002). Because Davison's motions for dismissal did not state specific grounds on which the evidence was deficient, he has waived any challenge to the sufficiency of the evidence supporting his convictions. Ark. R. Crim. P. 33.1(c); Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997).

Even if Davison's motions for dismissal were properly preserved for appeal, the evidence was sufficient to support his convictions. The test for determining the sufficiency of the evidence is whether substantial evidence supports the verdict. Dye v. State, supra. In making this determination, this court views the evidence in the light most favorable to the State and considers only that evidence supporting the verdict. Id. Substantial evidence is that evidence which is of sufficient force and character to compel a conclusion without resort to speculation or conjecture. Id.

"A person commits the offense of resisting arrest if he knowingly resists a person known by him to be a law enforcement officer effecting an arrest." Ark. Code Ann. § 5-54-103(a)(1) (Repl. 1997). A person "resists" an arrest if he uses, or threatens to use, physical force or any other means that creates a substantial risk of physical injury to any person. Ark. Code Ann. § 5-54-103(a)(2) (Repl. 1997). In this case, Davison admitted that he pulled his vehicle over because he saw the lights of the police car. In addition, Officer Sterka testified that he and Officer Best were in uniform and had marked police vehicles. Thus, Sterka and Best were known by Davison to be law enforcement officers. Although Davison testified that he was never told that he was under arrest or that he had an outstanding warrant, his testimony is contradictory to Sterka's testimony. It is for the finder of fact to determine the credibility of witnesses and to resolve conflicting testimony. Pack v. State, 73 Ark. App. 123, 41 S.W.3d 409 (2001). Finally, Sterka testified that he and Best struggled with Davison several times while trying to place him under arrest, that Davison continually pulled away from them, that Best was knocked to the ground during the struggle, and that they had to spray Davison with pepper spray. All of the above constitutes substantial evidence to support Davison's conviction for resisting arrest.

With respect to Davison's conviction for fleeing, Ark. Code Ann. § 5-54-125 (Repl. 1997)states that it is the lawful duty of a person to refrain from fleeing, either on foot or by means of a vehicle, if the person knows that his immediate arrest or detention is being attempted by an authorized law enforcement officer. Sterka testified that Davison started to run from them after he was sprayed with pepper spray and that even after Davison fell down and the officers again attempted to take him into custody, he continued to run from them. It was only after the officers chased Davison for more than a block that they were finally able to take him into custody. Thus, there was also substantial evidence to support Davison's conviction for fleeing.

The only other ruling adverse to Davison occurred during the sentencing hearing. Davison's mother testified on behalf of her son's character, and she began to discuss whether he was actually guilty of the offenses. The State objected, arguing that this testimony was not appropriate because Davison's guilt had already been determined. The trial court stated that it understood the State's objection and noted that there had been a finding as to Davison's guilt, but allowed Ms. Davison to continue "a little bit more."

A trial court's ruling on evidentiary matters is not reversed absent an abuse of discretion and a showing of prejudice to the defendant. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). Even assuming that this was an adverse ruling, the trial court was not erroneous in limiting Ms. Davison's testimony, as the question of Davison's guilt had been decided and was not relevant to the sentencing determination. Moreover, Davison cannot demonstrate prejudice from the trial court's ruling, because the trial judge's statements during the sentencing hearing showed that he listened to Ms. Davison and took her testimony into account when sentencing Davison.

From a review of the record and the brief presented to this court, we find compliance with Rule 4-3 (j) of the Rules of the Arkansas Supreme Court and Court of Appeals and hold that this appeal is without merit. Accordingly, we grant counsel's request to withdraw as Davison's attorneyand affirm the trial court's decision.

Affirmed.

Hart and Vaught, JJ., agree.