Steven L. Sawyer v. State of Arkansas

ar02-270

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR02-270

January 15, 2003

STEVEN L. SAWYER AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR98-3000]

V. HON. MARION HUMPHREY, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This cases arises from a conviction of theft of property in Pulaski County Circuit Court. Appellant's counsel filed a motion to be relieved, accompanied by a no-merit brief, pursuant to Arkansas Supreme Court Rule 4-3(j)(1) (2000) and Anders v. California, 386 U.S. 738 (1967). Although given the opportunity, appellant did not file a pro se response. We affirm and grant counsel's motion to be relieved.

In late November 1999, Ronnie Morgan reported a theft from his home where appellant was then temporarily living. Morgan indicated as missing several items of lawn equipment, power tools, as well as other personal possessions, including firearms, when he returned from a Thanksgiving family trip. In the house, Morgan found a note that indicated that someone had taken money from a "piggy bank," apparently referring to Morgan's coincollection. Appellant apparently never objected to or questioned the implied authorship of the note. In the wake of the theft, Morgan prepared a list of missing items and provided estimated values according to their alleged 1999 replacement cost.

Procedurally, the record reveals at least one continuance before trial. After waiving his right to a jury, appellant had a bench trial. At the beginning of that trial, counsel for appellant informed the court that appellant had dismissed him as his attorney. The trial judge did not relieve counsel of his duty, denied a request for another continuance, and directed the parties to proceed on the merits. During the trial, defense counsel stipulated to Morgan's list of missing items in "that this list [is] what he's claiming is missing and the value." Investigations revealed that appellant pawned some of the missing items at local pawn shops. Morgan was able to repurchase some power tools from these pawn shops.

A second witness for the State, police detective John Desizletes from the North Little Rock Police Department, testified that he investigated the reported theft in this case. During his direct examination, the State attempted to introduce certain photos showing some of the stolen property items. Counsel for defense objected because he was "not sure exactly what the State is going to be referring to on these [photos]." After the officer pointed out what tools shown in the photos were among the stolen tools in question, the court admitted the photos into evidence. Defense counsel did "not object for the limited purpose of just those enumerated items."

Detective Desizletes testified further in court that he received a statement from appellant, after mirandizing him, admitting taking and pawning the items retrieved from allpawn shops involved. Appellant specifically admitted taking several pieces of lawn equipment, drills, saws, weed eaters, blowers, and a lawnmower. Other items retrieved from pawn shops and identified by appellant as items he took without authorization from Morgan included an inline power tool, a laser, two Milwaukee screw drivers, pliers, and a reverse drill. According to police testimony, appellant admitted taking items from Morgan between October and November of 1999 and pawning them at different times and shops. Appellant apparently did not admit taking more items than were actually found at pawn shops. However, additional items remained missing.

At the end of the State's evidence, defense counsel moved for a directed verdict on the theft of property charge because the "State has not met its burden of proof on all the items alleged." The trial judge denied the motion. The defense presented appellant's girlfriend as a witness. After a brief redirect of Morgan, the defense rested and summarily renewed its motion for directed verdict. Again, the trial court denied the motion.

After receiving evidence of appellant's habitual offender status, the trial court found appellant guilty of theft of property, a Class B felony, and sentenced him to ten years' imprisonment, with three years suspended on the condition that he pay restitution in the total amount of $28,063.98. With appellant's defense counsel relieved, appellant timely filed a pro se notice of appeal. Subsequently, attorney Charles Duell was appointed to represent him. From this appointment stems the present motion to withdraw as attorney, pursuant to Rule 4-3(j)(1), before us.

Sufficiency of the Evidence

When counsel files a motion to withdraw on the grounds that the appeal is without merit pursuant to Anders v. California, supra, and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, we review everything in the record that might arguably support an appeal. McCoy v. State, 74 Ark. App. 414, 49 S.W.3d 154 (2001). Counsel must furnish a copy of the no-merit brief to appellant and thus afford him the opportunity to file pro se points for reversal. Ark. Sup. Ct. R. 4-3(j)(2) (2002).

We review the evidence in a criminal case in the light most favorable to the State and affirm the conviction if there is substantial evidence to support the verdict. Springston v. State, 61 Ark. App. 36, 962 S.W.2d 836 (1998). Substantial evidence is evidence that is of "sufficient force and character that it will, with reasonable certainty, compel a conclusion, without resorting to speculation or conjecture." Id. We defer to a fact finder's determination of credibility of witnesses. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). A directed-verdict motion is a challenge to the sufficiency of the evidence. Pond v. State, 69 Ark. App. 346, 14 S.W.3d 525 (2000). The failure to state specific grounds on a directed verdict motion bars a claim of insufficient evidence on appeal. Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). Precisely, such a motion must specify the "respect in which the evidence is deficient," and may not simply state that "the evidence is insufficient," to preserve the argument for appeal. Ark. R. Crim. P. 33.1(c) (2002). Upon appeal, we strictly construe this requirement. Cummings v. State, 315 Ark. 541, 869 S.W.2d 17 (1994).

Accordingly, we hold that appellant's motion for directed verdict failed to specify the respect in which the evidence is deficient, and thus, we cannot review any claim of insufficient evidence. In his motion for directed verdict, appellant's counsel merely stated that the State had not met its burden of proof "on all the items alleged." Consequently, we affirm on this point.

Other Adverse Rulings

Therefore, we are only left with a review of any other adverse rulings that might affect an appeal of this case. See McCoy v. State, supra. The first issue consists of the trial court's denial of the motion for continuance. Pursuant to Ark. R. Crim. P. 27.3, a trial court shall grant a continuance only upon a showing of good cause and as necessary, considering not only the requests of the parties, but also the public interest in prompt disposition of the case. It is within the discretion of the trial judge to grant or deny a continuance. Jarod v. State, 17 Ark. App. 223, 707 S.W.2d 325 (1986). We do not overturn that decision absent a showing of clear abuse. Id. Furthermore, in order to find a refusal of continuance erroneous, we look for a showing of prejudice to the defendant. Id. Additional factors to consider are such as (1) whether a continuance had been requested or granted before, (2) the length of the request of delay, (3) whether the delay is for legitimate reasons, (4) whether the motion for continuance was timely, (5) whether the defendant contributed to the circumstances giving rise to the request for continuance, (6) whether the reason for discharge of the existing counsel was solely for the purpose of obtaining a continuance, (7) whether the request isconsistent with the fair, efficient, and effective administration of justice, and (8) whether the accused had sufficient time to prepare for his defense. Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).

Here, we hold that the trial court did not err in denying a continuance because a number of the above factors weigh against appellant's case. Appellant failed to demonstrate prejudice. His defense counsel had been his attorney for a considerable length of time, and the defense was clearly prepared to go to trial that day, including presenting a witness. A prior continuance had been granted. No specific reasons are apparent why appellant dismissed his defense counsel. The motion for continuance in question occurred on the day of the trial.

The second issue to consider involves certain relevancy objections by appellant's counsel, overruled by the trial court. Counsel for defendant briefly objected to the introduction of certain photographs showing some of the stolen items. After objection, the State proceeded to elicit more detailed witness testimony to precisely point out which of the items on the photographs were indeed among the stolen items. Following the additional testimony, defense counsel no longer objected. Therefore, there remains nothing for us to review.

Third, the State introduced evidence that appellant was a habitual offender. Defense counsel never objected. Again, there is nothing for us to review.

Fourth, concerning the sentence itself, the sentence consists of restitution and incarceration. Defense counsel objected to the amount of restitution. However, defensecounsel previously had stipulated to Morgan's list of stolen property and estimated values, in "that this list [is] what he's claiming is missing and the value" (emphasis supplied). Therefore, defense counsel's later objection to the restitution amount is without merit. Regarding incarceration, defense counsel for appellant did not challenge the length of the prison term, and therefore, we do not need to reach that aspect of the judgment.

Accordingly, we affirm the lower court, because no reversible error has occurred, and grant the motion to withdraw pursuant to Rule 4-3(j)(1).

Affirmed.

Robbins and Bird, JJ., agree.