Lovell Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION I

LOVELL JOHNSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-682

July 3, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR 2000-38]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant, Lovell Johnson, was tried by a jury and found guilty of aggravated robbery and theft of property. He was sentenced to ten years' imprisonment on the aggravated robbery conviction and fined $1,000 on the theft of property conviction. 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, appellant's counsel has filed a motion to withdraw as counsel on the grounds that the appeal is wholly without merit. The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to appellant, and a statement of reasons why none of those rulings would be a meritorious ground for reversal.

In the brief, appellant's counsel addresses the three adverse rulings that were made in appellant's case: 1) denial of appellant's counsel's motions for directed verdict with respect to the charge of aggravated robbery; 2) denial of appellant's counsel's motions for directed verdict with respect to the charge of theft of property; and 3) denial of appellant's, not his counsel's, motion for a mistrial, which was made during the jury's deliberations and was based upon appellant's assertion that one of the witnesses had not been present for trial and should have been subpoenaed.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Moore v. State, 58 Ark. App. 120, 947 S.W.2d 395 (1997). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. In determining the sufficiency of the evidence we review the proof in the light most favorable to the appellee, considering only that evidence which tends to support the verdict. Id. The fact that evidence is circumstantial does not render it insubstantial. Id.

Here, Donna Heid testified that she was the cashier on duty at the Phillips 66 station located at Baseline and Chicot Roads on the night of July 18, 2000. She identified appellant as the person who entered the store that night and asked for a pack of Newport cigarettes. She stated that he picked up the cigarettes and "stuck" them somewhere, that he did not pay for them, that he told her he wanted all of the money out of her register, and that he kept reaching up under his shirt as if he had a gun. She testified that appellant never showed her a gun and never told her that he had a gun, but that she thought he had a gun. She also recounted that two men entered the store, at different times, while appellant was demanding that she open her register. She said that she told each man that she was being robbed andthat appellant had a gun. She said that each man then backed out of the store. Ms. Heid testified that when appellant finally left the store, she called the police. She noted that appellant used a bicycle to leave and that he went toward the "freight damage" facility.

Ms. Heid also described a video taping system that was in use at the store on the night of the robbery. She stated that there was more than one camera, but that she only had access to one set of tapes, which is the one she gave the police. The videotape was identified and played for the jury. The tape shows a man, identified as appellant, entering the store and interacting with Ms. Heid. It is only possible to see the man from the back, and it is therefore unclear from the tape where his hand is positioned in relation to his shirt. However, while the audio portion of the tape is at times hard to understand, it is clear that the man is demanding that Ms. Heid open her register and that when the two other men enter the store, she alerts them that she is being robbed and that the man has a gun. Both men immediately back out of the store.

Mr. Darrell Als testified that he was a cab driver for Black & White Cab Company and that on the night of July 18 he stopped at the Phillips 66 store to get gas and cigarettes. He said that when he entered the store the cashier told him she was being robbed and that he backed out of the store and dialed 911 on his cell phone. He identified appellant as the person who was leaning over the counter toward the cashier with his hand "stuck off in the inside of his jacket ...."

Officer Gordana Hubbard testified that she was employed by the Little Rock Police Department and that she was working on the night of July 18. She said that she was flaggeddown by a man who told her that a robbery had just occurred at the Phillips 66 store, that the person who did it was a black man wearing a tan baseball cap and that he was now on a bicycle heading westbound toward the freight-damaged foods store. Hubbard stated that she went behind the freight-damaged foods store and that the first thing she found was the bicycle. She said the tall, heavy brush was "mashed down" and that she just followed the track. She said that she found a man, whom she identified as appellant, lying down on the ground, sweating profusely, and wearing jeans and a T-shirt. She said that she did not find a gun, but that she did find a new, unopened package of Newport cigarettes, a tan baseball cap, and a bandanna.

There was substantial evidence supporting both the theft of property and the aggravated robbery convictions. A person commits the offense of theft of property if 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(a)(1) (Repl. 1997). Appellant was found with a new, unopened package of Newport cigarettes, and Ms. Heid testified that he took them from the store without paying for them. "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; or (2) Inflicts or attempts to inflict death or serious physical injury upon another person." Ark. Code Ann. § 5-12-103 (Repl. 1997) (emphasis added). As our supreme court explained in Clemmons v. State, 303 Ark. 354, 357, 796 S.W.2d 583, 585 (1990):

We hold that where a defendant verbally represents that he is armed with a deadly weapon that this is sufficient to convict for aggravated robbery regardless of whether in fact he did have such a weapon. Where no verbal representation is made and only conduct is in evidence, the focus is on what the victim perceived concerning a deadly weapon.

(Emphasis added.) See also Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Regardless of whether appellant actually had a gun, Ms. Heid testified that she thought he did, and that is supported by her comments to the two men who entered the store and the fact that they quickly backed out of the store.

The last adverse ruling made by the trial court was its denial of appellant's, not his counsel's, motion for a mistrial. The declaration of a mistrial is an extreme remedy, which should only be granted when justice cannot be served by continuing the trial. Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). A mistrial should only be declared when the fundamental fairness of the trial itself has been manifestly affected. Id. Declaring a mistrial is proper only where the error is beyond repair and cannot be corrected by any curative relief. Id. The circuit court has wide discretion in granting or denying a motion for a mistrial, and this court will not disturb the court's decision absent an abuse of discretion or manifest prejudice to the movant. Id. Moreover, as a general rule, a motion for mistrial may be denied when the request is not made at the first opportunity to do so. See Benton v. State, 41 Ark. App. 167, 850 S.W.2d 36 (1993).

We hold that the trial court did not abuse its discretion in denying appellant's motion for a mistrial. First, appellant made the motion during jury deliberations, and it was based upon his assertion that a witness who did not testify should have been subpoenaed. Themotion was clearly not made at the first opportunity to do so. Moreover, on the record before us, we see no manifest prejudice to appellant affecting the fundamental fairness of the trial itself.

In addition to the adverse rulings briefed by appellant's counsel, the clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se list of points on appeal within thirty days. Appellant has responded by filing a list of pro se points with this court. The State filed a brief in response to appellant's pro se points, asserting that the case should be affirmed in all respects.

Appellant lists the following reasons that he believes his case should be reversed: 1) he did not receive a fair trial; 2) this case was "racial for the fact Detective Knowles made racial remarks stating that he's going to make sure I get twenty years because I did not want to give a statement"; 3) he was permitted to view only one videotape, even though he asked to view them all; 4) "bias of trial judge"; 5) "perjury"; 6) "violation of Rule 4.4 - 4.5" (presumably, Arkansas Rules of Criminal Procedure on arrest (4.4) and limitations on questioning (4.5)); 7) "omission of witnesses"; 8) "ineffective assistance of counsel"; 9) "improper search and seizure"; 10) "trial tactics and strategy." With the exception of point number seven, "omission of witnesses," which has already been discussed, the points listed by appellant were not preserved for appeal by appropriate objection in the trial court, and therefore they cannot be raised for the first time on appeal.

From our review of the record and the briefs presented to us, we find that there has been compliance with Rule 4-3(j) and hold that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and appellant's convictions are affirmed.

Affirmed.

Bird and Crabtree, JJ., agree.