Lytrone Dajuan Davis v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

LYTRONE DAJUAN DAVIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-364

February 25, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CR 02-585]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Lytrone Davis was convicted in a bench trial of the offenses of aggravated robbery, first-degree battery, and misdemeanor theft of property. On appeal, he argues that the trial judge erred in denying his motion to dismiss the aggravated-robbery charge because "the State failed to introduce substantial evidence that [he] and his accomplices exercised physical force against [the victim] with the purpose of exercising unauthorized control over his property."1 Davis's argument is not preserved for review; therefore, we affirm his conviction.

At the close of the evidence, Davis made the following motion:

As to the other [aggravated robbery and theft of property] charges, we'd just ask the Court to find him not guilty since Mr. Lott didn't specifically say that Mr. Davis specifically took anything from him. I don't remember him saying that Mr. Davis took anything from him. He said things were taken from him and I don't remember if he announced who it was that took it from him.

On appeal, appellant now argues that the State failed to prove that he and his accomplices used physical force against the victim for the purpose of exercising unauthorized control over the victim's property. The State contends, and we agree, that appellant did not make the argument to the trial judge that he is now making to this court, and therefore, it cannot be made for the first time on appeal. A party cannot change the grounds for an objection or motion on appeal, but is bound by the scope and nature of the arguments made at trial. Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). Because this argument was not made to the trial court, appellant cannot now make this argument on appeal.

Nevertheless, if we were to reach the merits of appellant's argument, we would affirm his conviction for aggravated robbery. A person commits robbery if, "with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person commits aggravated robbery if "he commits robbery as defined in § 5-12-102, and he inflicts or attempts to inflict death or serious physical injury upon another person." Ark. Code Ann. § 5-12-103(a)(2) (Repl. 1997). A person commits 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; or knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1) & (2) (Supp. 2003).

Appellant argues on appeal that the State failed to prove that he and his accomplices used physical force against the victim for the purpose of exercising unauthorized control over the victim's property, although the victim testified that "they" took $1.50, his cell phone, and his shoes, and that he was beaten about the head with a baseball bat. At trial, appellant testified initially that he "jumped in" the fight to defend his friend, and he denied that he had taken the$1.50, although he said that the victim gave the money to Juan Hill, one of the accomplices, before the fight. Appellant denied that any of them had taken the cell phone. On cross-examination, appellant admitted that in the statement he had given the police, he had said that he was not robbing the victim but rather was teaching him a lesson. However, he also asserted that he lied in the statement and did not remember saying some of the things in the statement because he was under the influence of marijuana and "sherm" at the time he gave the statement.

In Smith v. State, 65 Ark. App. 216, 218-19, 986 S.W.2d 137, 138-39 (1999) (citations omitted), this court held:

Appellant only argues that he did not posses the requisite intent to commit a theft because he was only teaching the victim a lesson. We have consistently recognized that a criminal defendant's intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. The trier of fact is allowed to draw upon his own common knowledge and experience to infer intent from the circumstances. Because of the difficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequences of his acts.

Here, all that is required to support a finding of theft is that appellant knowingly took or exercised unauthorized control over Mr. Brown's property with the purpose of depriving Mr. Brown of his property. It is not disputed that the victim's clothes were taken and thrown out of the car. Despite appellant's assertion that his motive was only to teach the victim a lesson and not to commit a theft, his actions indicate another purpose - to deprive the victim of his possessions. It was a natural and probable consequence of appellant's action, throwing the victim's possessions out of the vehicle, that the victim would be deprived of those possessions. It is of no consequence that appellant was teaching the victim a lesson or that he did not keep the victim's property for himself. Arkansas Code Annotated section 5-36-103(a)(1) speaks to intent, not motive, and appellant has obviously misconstrued the language of this statute. Even though appellant asserts that his motive was only to teach the victim a lesson, the jury could have inferred from the events in this case that the statutory intent to commit a theft was satisfied. Thus, we find that the evidence is sufficient to support appellant's conviction for aggravated robbery.

As in Smith, supra, the finder of fact in the present case could have inferred that appellant intended to commit a theft when the victim's possessions were taken from him, even though appellant contends that they were just teaching the victim a lesson. There is sufficient evidence to support appellant's aggravated-robbery conviction.

Affirmed.

Bird and Vaught, JJ., agree.

1 Davis does not appeal his convictions for first-degree battery or misdemeanor theft of property.