Lenzy McCullough v. State of Arkansas

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ar02-578

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

LENZY McCULLOUGH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-578

MAY 14, 2003

APPEAL FROM THE CROSS COUNTY CIRCUIT COURT

[NO. CR 93-170]

HONORABLE L.T. SIMES, III, JUDGE

AFFIRMED

A jury sitting in the Cross County Circuit Court convicted the appellant, Lenzy McCullough, of aggravated robbery and possession of a firearm by certain persons and sentenced him to forty-six years' imprisonment in the Arkansas Department of Correction. Appellant made timely directed-verdict motions at his trial. Below, he argued that, respecting his aggravated-robbery conviction, contradictions in the State's evidence and his belief that physical evidence had been mishandled, rendered the proof legally insufficient, and, respecting his possession-of-a-firearm conviction, that the State failed to introduce substantial evidence of his possession of a firearm. The trial court denied both motions. Appellant also objected to the admissibility of a certified copy of his prior felony conviction from Craighead County. The trial court overruled his objection. On appeal, appellant contends that sufficient evidence does not support: (1) his conviction for aggravated robbery

because contradictory circumstantial evidence admitted at trial did not eliminate other reasonable hypotheses consistent with innocence; (2) his conviction for felon in possession of a firearm because the State failed to prove that he "had been linked to a gun used in a robbery"; and (3) his conviction for felon in possession of a firearm because the trial court erred in admitting the judgment and commitment order from Craighead County. We affirm.

We are mindful of the well-established standard of review in cases challenging the sufficiency of the evidence. This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). Whether every reasonable hypothesis is excluded is a determination made by the finder of fact. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 419 (2000).

A person commits robbery if, "with the purpose of committing a felony ormisdemeanor theft [he or she] employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-73-103(a)(1) (Repl. 1997). A person commits aggravated robbery if he or she commits robbery and "is armed with a deadly weapon." Ark. Code Ann. § 5-12-103(a) (Repl. 1997). Furthermore, it is unlawful for a person who has previously been convicted of a felony to possess a firearm. Ark. Code Ann. § 5-73-103(a)(1) (Repl. 1997).

On October 5, 1993, appellant entered the Fast Lane convenience store in Fair Oaks, Arkansas, and walked to the cooler. He selected a Colt .45 malt liquor, walked to the cash register, set a gun on the counter, and asked for a package of cigarettes and all money in the cash drawer. Rosemary Glass, one of the clerks working that evening, put the money on the counter. Appellant put the money in his pocket and walked out the front door. Appellant got into his Cadillac and drove away.

Moments later, Officer Forrest Brewster, of the Cross County Sheriff's Office, heard about the robbery on his hand-held police scanner. The officer got in his police cruiser and headed toward Fast Lane. Officer Brewster met appellant on Highway 284 and saw appellant driving at approximately seventy or eighty miles per hour. Officer Brewster activated his blue lights and sirens and drove after appellant. While following appellant, the officer observed him run through three roadblocks that had been erected to stop appellant. He drove in excess of 100 miles per hour throughout most of the chase, and appellant ran several people off of the road. Considering appellant's erratic driving to be a danger to human life, Officer Brewster shot at appellant, whereupon appellant hit a ditch and buriedhis car approximately 500 feet from the road in a rice field.

After the chase, officers conducted a search of appellant's vehicle. Officer Darryl Griffin of the Cross County Sheriff's Office found a .380 handgun and matching bullets in the car. Officer Griffin also found a Colt .45 bottle of beer in the car. When the car was towed to the jail, Dale Arnold, a criminal investigator for the State Police, found a pack of Monarch cigarettes in the back seat, and police found $418 in the car. Both the Monarch cigarettes and a Colt .45 beer were taken from the store. At trial, Glass identified appellant as the robber.

Appellant argues that his aggravated-robbery conviction must be reversed because contradictory circumstantial evidence admitted at trial did not eliminate other reasonable hypotheses consistent with innocence. While it is true that circumstantial evidence is substantial evidence only if all reasonable hypotheses consistent with innocence are excluded, "once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes every other hypothesis consistent with innocence is for the jury to decide." Ashe v. State, 57 Ark. App. 99, 942 S.W.2d 267 (1997). Furthermore, the jury alone resolves inconsistencies in testimony, and appellate courts defer to the jury's resolution of those matters. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002). Moreover, Rosemary Glass positively identified appellant as the robber. That testimony was direct evidence of appellant's guilt. Thus, the jury's decision did not rest purely on circumstantial evidence. The testimony of one eyewitness alone is sufficient to sustain a conviction. Wesley v. State, 318 Ark. 83, 883 S.W.2d 478 (1994).

In addition, the State showed that appellant possessed items taken from the store in the robbery. When the car in which appellant fled the robbery was searched, police found a pack of Monarch brand cigarettes and a Colt .45 beer that he had taken from the store. Also, appellant was in possession of $418, which was roughly the same amount of money taken from Fast Lane. Finally, appellant fled from the police. Flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999).

Appellant contends that contradictions in testimony and his belief that the police inadequately investigated the crime rendered the evidence against him insufficient. His arguments concern the weight of the evidence and inconsistencies in the evidence, which are matters for the jury alone to resolve. Alexander, supra. We hold that sufficient evidence supports appellant's aggravated-robbery conviction.

Next, appellant maintains that his conviction for possession of a firearm by certain persons must fail because the State failed to show that "the gun introduced into evidence was used in the robbery, or was [his]." Appellant neither cites legal authority nor makes a convincing argument for the proposition that, in a prosecution for possession of a firearm by certain persons, the State must additionally link the gun in the accused's possession to one used in a crime, which is, alone, reason to reject his argument. Kelly v. State, 350 Ark. 238, 85 S.W.3d 893 (2002). In any event, Rosemary Glass testified that appellant had a gun at the time he robbed the store. She stated that she observed appellant with a handgun, and this alone is sufficient evidence that he possessed a firearm. See Stanton v. State, 344 Ark.589, 42 S.W.3d 474 (2001).

For appellant's final point on appeal he contends that his conviction for felon in possession of a firearm is not supported by sufficient evidence because the trial court erred in admitting his judgment and commitment order from Craighead County for theft by receiving, a class C felony. We note that appellant has changed his argument on appeal. Below, he argued that the judgment and commitment order could not be admitted into evidence based upon Arkansas Rule of Evidence 902, which requires a seal on some self-authenticated documents. Rather than continuing with this evidentiary argument on appeal, he transforms his argument into a question of the sufficiency of the evidence related to his conviction for felon in possession of a firearm. Our law is well established that arguments not raised at trial will not be addressed for the first time on appeal. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). Furthermore, parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Nix v. State, 54 Ark. App. 302, 925 S.W.2d 802 (1996). Therefore, appellant's argument as it pertains to the judgment and commitment order was not preserved for appeal.

Affirmed.

Stroud, C.J., and Robbins, J., agree.

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