Datron L. Johnson, Sr. v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar03-312

DIVISION II

DATRON L. JOHNSON, SR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-312

January 21, 2004

APPEAL FROM THE HOT SPRING COUNTY CIRCUIT COURT

[NO. CR2002-110-2]

HONORABLE PHILLIP H. SHIRRON,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

A jury convicted appellant, Datron Johnson, of aggravated robbery and first-degree battery, and he was sentenced to a total of 360 months' imprisonment. On appeal, he raises four issues, arguing that (1) the circuit court erred in denying his motion for a directed verdict on the aggravated-robbery charge; (2) the circuit court erred in sentencing him for both aggravated robbery and first-degree battery; (3) the circuit court erred in denying his motion for a continuance; and (4) the circuit court erred in refusing to suppress a statement he made to police officers. We affirm.

Double-jeopardy considerations require that we first address appellant's challenge to the sufficiency of the evidence to support his aggravated-robbery conviction.1 Coon v. State, 76

Ark. App. 250, 65 S.W.3d 889 (2001). When an appellant challenges the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict, and we will affirm if there isany substantial evidence to support the finding of guilt, which is evidence of sufficient force and character to compel a conclusion one way or the other, inducing the mind to pass beyond mere suspicion or conjecture. Id.

As the jury was instructed in this case, an aggravated robbery may be established by proof that, with the purpose of committing a theft or resisting apprehension immediately thereafter, a person employed or threatened to employ physical force upon another and that he was armed with a deadly weapon or represented by words or conduct that he was armed with a deadly weapon. See Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997); Ark. Code Ann. § 5-12-102(a) (Repl. 1997). Here, the victim's own testimony established these elements.

The victim, George Tolfree, testified that on April 4, 2001, he went to the residence of Wanda Wise. Appellant, Janis Toney, Wise, and Beverly Johnson were at the residence. Toney offered to have sex with Tolfree in exchange for forty dollars. After giving her the money, Toney purchased crack cocaine, and she and Tolfree went to a back bedroom. Tolfree testified that they did not have sex, and when he exited the bedroom, appellant, who was standing in the doorway of the bathroom, told Tolfree that he wanted to speak with him. Tolfree entered the bathroom, and appellant said something to Tolfree that Tolfree did not understand. Appellant then said, "Fuck it," and he shot Tolfree with a handgun. Appellant further said, "Fuck you, put your money up here on this floor up here." Tolfree placed his money on the floor. Appellant threatened to shoot Tolfree again if he did not put all of his money on the floor, and he ordered Tolfree to place his wallet and watch on the floor, which Tolfree did. Appellant asked Beverly Johnson three times whether she wanted him to shoot Tolfree in the head. While at first appellant prevented Tolfree from exiting the residence, appellant ultimately permitted him to leave. Tolfree further testified that the money was still on the floor when he left.

Appellant argues on appeal that the evidence was insufficient to support the aggravated-robbery charge because Tolfree did not see appellant pick up the money. Our supreme court, however, has stated that no transfer of property must take place to complete the offense of aggravated robbery. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002), cert. denied, 123 S. Ct. 2257 (2003). Consequently, we affirm the circuit court's denial of appellant's motion for a directed verdict on the aggravated-robbery charge.

On August 6, 2002, two days prior to trial, appellant filed a motion for a continuance, stating that he had subpoenaed Janis Toney but that the sheriff had not served the subpoena. He further stated that Toney was a vital witness essential to his defense. At a pretrial hearing held August 7, appellant's counsel stated that he had tried to subpoena Toney; that appellant knew where she was, having seen her ten minutes before he came to court; and that he was willing to furnish this information to the sheriff. The State observed that appellant should have called the police and had her picked up, as there was a warrant for her arrest. Counsel for appellant reiterated that he needed help in ensuring Toney's presence at trial. The court denied the motion.

Appellant asserts that the circuit court's denial of the motion for a continuance was error. He asserts that "[t]he denial of the continuance until such time as Janis Toney could be obtained as a witness amounted to a denial of justice as Janis Toney could shed light on [a]ppellant's defense."

The decision to grant or deny a continuance is within the discretion of the trial court, and the decision will not be reversed absent an abuse of that discretion. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997). In deciding whether to grant or deny a continuance motion, a circuit court may consider (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the attendance of the witness in the event ofa postponement; and (4) the filing of an affidavit, stating not only what facts the witness would prove, but also that the appellant believes them to be true. The appellant must also demonstrate prejudice from the denial of the continuance. Id.

Here, appellant did not file an affidavit or otherwise advise the court of what facts Toney would prove. Consequently, we do not know the probable effect of her testimony at trial. From this, it follows that appellant also did not demonstrate how he was prejudiced by the denial of the continuance. Thus, we cannot say that the trial court abused its discretion in denying the motion.

Appellant further argues that the circuit court erred in sentencing him for both aggravated robbery and first-degree battery. Though not citing the relevant statutory authority, he appears to argue that he may not be convicted of both offenses because the elements of first-degree battery are included in aggravated robbery, making first-degree battery a lesser-included offense of aggravated robbery. See Ark. Code Ann. § 5-1-110 (Repl. 1997).

On the battery charge, the jury was instructed in accordance with Ark. Code Ann. § 5-13-201(a)(1) (Repl. 1997), which provides that "[a] person commits battery in the first degree if... [w]ith the purpose of causing serious physical injury to another person, he causes serious physical injury to any person by means of a deadly weapon...." On the aggravated-robbery charge, the jury was instructed in accordance with Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997), which provides that "[a] person commits aggravated robbery if he commits robbery ... and he ... [i]s armed with a deadly weapon or represents by word or conduct that he is so armed...." We note that the jury was not instructed in accordance with Ark. Code Ann. § 5-12-103(a)(2) (Repl. 1997), which provides that "[a] person commits aggravated robbery if he commits robbery ... and he ... [i]nflicts or attempts to inflict death or serious physical injury upon another person."

Consequently, the jury was instructed under Ark. Code Ann. § 5-12-103(a)(1), which, unlike Ark. Code Ann. § 5-12-103(a)(2), does not require proof that a person inflicted or attempted to inflict serious physical injury. Battery, however, requires proof that a person caused serious physical injury. Our supreme court addressed this issue as follows:

[Petitioner] .... argues only that the conviction and sentence for the crime of battery in the first degree are void. He bases the conclusion on the claim that under the felony information filed in his case the proof required to prove aggravated robbery necessarily included proof of the battery. He overlooks, however, that he was charged by amended felony information with separate offenses of aggravated robbery and battery in the first degree. We have held that one can commit aggravated robbery merely by committing robbery and being armed with a deadly weapon or representing that he is so armed. To commit first degree battery, one must actually inflict serious injury. As petitioner was charged and convicted of two separate, distinct crimes, the conviction for battery is not void.

Lewis v. State, 299 Ark. 310, 311, 771 S.W.2d 773, 773 (1989)(citations omitted). Thus, as the jury was instructed here, first-degree battery was not a lesser-included offense of aggravated robbery.

Finally, appellant argues that the circuit court erred in refusing to suppress a statement he made to police officers, contending that it was involuntary. The surrounding facts are that after appellant was brought to the Malvern Police Department and read his Miranda rights, he gave a statement to Detective Frazier Ford of the Malvern Police Department in which he denied that he shot Tolfree. Ford ended the interview and left. Fifteen to twenty minutes later, appellant, who was in a detention room at the police department, called for Lieutenant Jerry McAnear of the Malvern Police Department and told him that he wanted to make another statement and tell the truth. McAnear and Ford then took appellant's statement in which he asserted that he shot Tolfree after Tolfree began choking Toney.

McAnear testified that just before appellant gave his statement, he assured appellant that he would not be "railroaded" and that he would make sure that the prosecutor knew thatappellant had cooperated and had made a truthful statement. Appellant testified that the officers promised him that if he gave a statement, they would talk to the prosecutor to see if they could get the charges "dropped down so that they would help me out, the same thing they've been trying to do since I've been out of jail now on bond." Appellant, however, was further asked, "Would you have given this statement unless they had promised you something?" Appellant testified that yes, he still would have given the statement.

Appellant asserts that "[i]t is clear from the testimony that [appellant's] statement made while in custody was not voluntary in that [a]ppellant was promised leniency for his statement." We note that "[a] statement induced by a false promise of reward or leniency is not a voluntary statement." Roberts v. State, 352 Ark. 489, 499, 102 S.W.3d 482, 489 (2003). Further, "[w]hen a police officer makes a false promise that misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been made voluntarily, knowingly, and intelligently." Id. However, "for the statement to be involuntary, the promise must have induced or influenced the confession." Id. The circuit court's denial of a motion to suppress a statement will not be reversed unless the denial is clearly erroneous or clearly against the preponderance of the evidence. Id. at 499-500, 102 S.W.3d at 489.

Here, we cannot say that the circuit court's denial of the motion to suppress was clearly against the preponderance of the evidence. Appellant called for McAnear and told him that he wanted to make another statement and tell the truth. Further, appellant testified that he still would have given the statement even without the "promise." Thus, even assuming, arguendo, that the statements made by the police could be construed as a promise of leniency, the "promise" did not induce or influence appellant's statement, and consequently, appellant's statement was not involuntary.

Affirmed.

Stroud, C.J., and Gladwin, J., agree.

1 Appellant does not challenge the sufficiency of the evidence to support his first-degree battery conviction.