Jonathan Eugene Griffin v. State of Arkansas

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ar03-848

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JONATHAN EUGENE GRIFFIN,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR03-848

JUNE 30, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR02-4281,

HON. JOHN W. LANGSTON, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Jonathan Griffin was charged with the offenses of aggravated robbery and theft of property. He stood trial in Pulaski County Circuit Court with the judge sitting as factfinder. The State offered evidence that on August 23, 2002, at approximately 9:00 p.m., two men committed aggravated robbery and theft of property at a Backyard Burgers restaurant. There was testimony that the robbers used a knife and gun to employ physical force upon two customers and four employees. One of the State's witnesses, McKinley Green, testified that appellant was the robber who used a knife. Also, without objection from appellant, the State introduced into evidence an in-custodial statement in which appellant confessed to committing the offenses. The court found appellant guilty. A sentencing hearing was held, and appellant was sentenced as an habitual offender to thirty years' imprisonment in the Arkansas Department of Correction.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court, Griffin's counsel has filed a motion to withdraw on the grounds that the appeal is without merit. The motion is accompanied by a brief discussing all matters in the record that might arguably support an appeal, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Griffin was provided with a copy of his counsel's brief and was notified of his right to file points for reversal within thirty days. The State has informed this court that, because Griffin has failed to file any points for reversal, it does not intend to file a brief regarding his appeal. Arkansas Supreme Court Rule 4-3(j)(1) requires that the argument portion of counsel's brief must list "all rulings adverse to the defendant" and must explain why each is not a meritorious ground for reversal. Counsel notes four adverse rulings were made against appellant.

Appellant's first adverse ruling occurred when the judge, sitting as finder of fact, denied appellant's motion for a continuance. Appellant asked for a continuance on the day of the trial in order to hire a private attorney. He told the court that he wanted a new attorney because his present attorney had not spent any time with him discussing his case. Appellant stated that his sister had asked him if it was too late to hire a private attorney. However, he did state that he did not have any funds for an attorney and that he and his attorney had been in court on at least three previous occasions. In addition, he stated that he had not made any attempts to contact another attorney.

A motion for continuance is addressed to the discretion of the trial court and will not be reversed absent an abuse of discretion. Ellison v. State, Ark. , 123 S.W.3d 874 (2003). The burden of proving an abuse of discretion due to prejudice resulting from the denial of a continuance is upon the appellant, and the appellant must demonstrate prejudice before the court will consider a trial court's denial of a continuance to be an abuse of discretion. Id. In the case at bar, appellant stated that he had neither attempted to hire another attorney nor had the funds to do so. In addition, he argued that he wanted a private attorney because his present attorney had not met with him to discuss his case. However, he admitted that he and his present attorney had made three appearances in court. This adverse ruling does not merit reversal.

Another adverse ruling occurred when appellant's counsel asked the detective to whom appellant had given his statement if the detective asked appellant leading questions. The detective answered that he did not ask appellant leading questions when he was making his statement. Appellant's counsel then asked the detective the same question several more times. The State then told the judge that the question had been asked and answered. The court then stated, "Counsel, you've made your point." A cross-examiner is given wide latitude and cannot be unduly restricted in eliciting facts that affect a witness's credibility. Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987). However, it is not an abuse of discretion to interfere with or limit cross-examination of a witness when it appears the matter has been sufficiently developed and clearly presented to the fact-finder. Id. A trial court does not abuse its discretion in limiting cross-examination when the questions asked and answers sought are merely repetitive. Id. This ruling was not in error because the question had been asked several times.

The next two adverse rulings occurred when the court denied appellant's motions for directed verdict made at the end of the State's case and again at the end of appellant's case. At the end of the State's case, appellant made a motion for directed verdict contending that McKinley Green, who positively identified appellant as the person committing the aggravated robbery, was not credible in that he had previously told police that he could not identify the person who committed the robbery. He also argued that the statement that appellant gave to police in which he stated that he committed the aggravated robbery was not credible. The court denied the motion. After the appellant rested his case, he renewed his motion for directed verdict. The court again denied the motion.

Our standard of review for the denial of a motion for directed verdict is whether the jury's verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Costner v. Adams, 82 Ark. App. 148, 110 S.W.3d 304 (2003). In determining whether there is substantial evidence, we view the evidence in the light most favorable to the party against whom the verdict is sought and give the evidence its strongest probative force. Id.

The court did not err in denying appellant's motions. Green's testimony was unequivocal in regard to whether or not appellant was the one committing aggravated robbery. In fact, Green stated that there was no doubt in his mind that appellant was the one who committed the robbery. In addition, in the statement given to the police, appellant admitted to committing the crime.

Conviction affirmed; counsel's motion to withdraw granted.

Gladwin and Griffen, JJ., agree.