Lawrence Stewart v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOSEPHINE LINKER HART, JUDGE

DIVISION IV

LAWRENCE STEWART

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-597

July 3, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 2000-1860]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Lawrence Stewart, appellant, was charged with two counts of aggravated robbery and one count of misdemeanor theft of property. The jury found appellant guilty of the aggravated robbery of Josh Miller, the robbery (a lesser-included offense of aggravated robbery) of Steven Hudgens, and misdemeanor theft of property. The jury imposed a $160 fine on appellant for the robbery conviction but was unable to reach a sentence on the aggravated robbery conviction. The trial court then sentenced appellant to ten years' incarceration on the aggravated robbery conviction.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Ark. R. Sup. Ct. 4-3(j)(1)(2001), appellant's counsel filed a motion to withdraw, abstracted the record, and submitted a brief that listed all rulings adverse to appellant and explained why each adverse ruling does not present a meritorious ground for reversal. Although the appellant was

furnished with a copy of counsel's brief and notified of his right to file pro se points for reversal within thirty days, appellant failed to file such points.

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²··The State alleged that appellant had committed two separate acts of aggravated robbery in violation of Ark. Code Ann. § 5-12-103 (1997). In Count I, the State alleged that appellant demanded money from Hudgens while representing that he had a weapon. In Count II, the State alleged that, on the same day as the Hudgens aggravated robbery, appellant also demanded Miller's money while representing that he had a weapon. Further, the State alleged in Count III that appellant had committed theft of property by taking $180 from Hudgens.

At trial on January 3, 2001, defense counsel for appellant moved for a directed verdict at the close of the State's case, stating as follows:

I'll move for a directed verdict. As far as to Steven Hudgens, I think that his testimony was that my client told some persons in a vehicle to get a pistol or to "cap him" if Steven Hudgens did not give him his money. According to 5-12-493 [sic], as far as the prosecutor proving that he had a deadly weapon or represented by word or conduct that he had a weapon, I don't think they've proven that. I think what they proved as far as Steven Hudgens was that he told some other individuals to pull a weapon, and I'll cite the statute that is armed with a deadly weapon or represents by word or conduct that he is so armed, and that wasn't proven that he was so armed as far as to Steven Hudgens goes.

As far as Josh Miller, I will move for a directed verdict that they did not make a prima facie case that Lawrence Stewart had a deadly weapon or that he represented by word or conduct that he was armed.

Following the trial court's denial of appellant's motion, the jury found appellant not guilty of an aggravated robbery of Hudgens, but found him guilty of the lesser-included offense of robbery.

Because the jury found the appellant not guilty of the aggravated robbery of Hudgens as was urged by appellant in his directed-verdict motion, the denial of that motion cannot serve as the basis for appeal. See Beavers v. State, 345 Ark. 291, 46 S.W.3d 532 (2001). Further, appellant's motion did not argue the insufficiency of the evidence to support a robbery charge, and thus, was not preserved for appellate review. See Ark. R. Crim. P. 33.1; Beavers, supra.

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²··Appellant, however, properly preserved his challenge to the sufficiency of the evidence to support his conviction for the aggravated robbery of Miller. At trial, he argued that the evidence was insufficient because the State did not prove that he was armed with a deadly weapon or that he represented by word or conduct that he was so armed. A person commits aggravated robbery if he commits a robbery and is armed with a deadly weapon or represents by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). At trial, Miller testified that appellant approached him, asked for his money, searched his pockets, and told him "over and over" that he had a pistol. Miller's testimony constitutes substantial evidence that appellant represented by conduct that he was so armed. See Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990) (holding that a defendant's verbal representation that he is armed with a deadly weapon is sufficient to support a conviction for aggravated robbery).

The record reflects two other rulings that were decided adversely to the appellant. Over appellant's objection that the question called for speculation, the trial court allowed the State to ask Josh Miller the following question after the State argued that the purpose of thequestion was to show his state of mind at the time: "Josh, do you believe the defendant would have taken money from you if you'd had it?" Miller admitted that he thought appellant would have taken his money. Even if appellant was correct in his objection, this court has "routinely held that where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm." Bledsoe v. State, 344 Ark. 86, 90, 39 S.W.3d 760, 763 (2001)(citing Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997); Abernathy v. State, 325 Ark. 61, 925 S.W.2d 380 (1996)). Based on our reading of the record and without restating the facts of this case, we find overwhelming evidence to support the conviction.

The other adverse ruling arose during the redirect examination of Miller. On cross examination, Miller admitted that he had previously told the detective that he had not heard everything the appellant had said to Hudgens, particularly with regard to whether appellant had a weapon. The State then asked Miller, "[Defense Counsel] asked you if you told Detective Dingler, which was just a couple of days after this happened. She asked you if you told him if he had a pistol. You know, if he told you he had a pistol and I want to..." Appellant renewed his objection and the trial court overruled appellant's objection to the form of the question directed to Miller and allowed the prosecutor to continue. The prosecutor then showed Miller his statement to the police and asked him to read from it. Appellant again objected, arguing that the State's question was asking the witness something on redirect that had not been addressed on cross examination.

Initially, appellant objected to the form of the question and later asserted that the question exceeded the scope of cross examination, and he neither objected further to thecourt that the testimony was improper nor sought to have the testimony struck from the record. Rule 611 of the Arkansas Rules of Evidence states that "the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... (2) avoid needless consumption of time..." We will not reverse the trial court's ruling on the admission or rejection of evidence absent an abuse of discretion. Williams v. State, 343 Ark. 591, 36 S.W.3d 324 (2001). Further, a witness's prior consistent statement is admissible under an exception to the hearsay rule to rebut express or implied charge of recent fabrication. See Harris v. State, 339 Ark. 35, 2 S.W.3d 768 (1999). Therefore, we cannot conclude that the court abused its discretion in overruling appellant's objection.

From our review of the record and counsel's brief and abstract, we find compliance with Rule 4-3(j) and agree that this appeal is without merit. Consequently, we grant counsel's motion to be relieved as counsel and affirm appellant's conviction.

Affirmed.

Vaught and Roaf, JJ., agree.