Marcus Evans v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

MARCUS EVANS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-944

April 14, 2004

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. CR 02-178-5]

HON. DON EDWARD GLOVER,

CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

In separate proceedings, a jury found appellant, Marcus Evans, guilty of the crimes of aggravated robbery, theft of property, and being a felon in possession of a firearm. He was sentenced to a total of twenty-five years' imprisonment and ordered to pay $14,000 in restitution. On appeal, he challenges the sufficiency of the evidence to support the convictions, arguing that the victim's testimony was not credible and lacked corroboration. We affirm.

We affirm a conviction if it is supported by substantial evidence, which is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. See, e.g., Stephenson v. State, 334 Ark. 520, 975 S.W.2d 830 (1998). The credibility of the witnesses is to be determined by the jury, and one eyewitness's testimony is sufficient to sustain a conviction. Id.

In this case, the jury was instructed that to sustain the charge of aggravated robbery, the State had to prove that, with the purpose of committing a theft, appellant employed or threatened to immediately employ physical force upon another and that he was armed with a deadly weapon or attempted to inflict death or serious physical injury upon another person. See Ark. Code Ann. § 5-12-102(a) (Repl.1997); Ark. Code Ann. § 5-12-103(a) (Repl.1997). To establish that appellant committed the crime of theft of property, the State had to prove that appellant knowingly took the property of another person with the purpose of depriving the owner thereof. See Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2003).

Here, the victim, Charles Savage, Jr., testified that on April 2, 2002, he stopped his Chevy S10 Blazer at a stop sign, and appellant entered the truck and put a gun to Savage's head. After having Savage drive down the street, appellant ordered him to stop, exit the vehicle, stand in front of the headlights, and pull up his shirt. Appellant searched the truck while holding a gun on Savage, and he told Savage that if he moved, he would kill him. He asked Savage if he was a police officer, and Savage said that he was not. After appellant exited the truck, he put the gun in his back pants pocket and shook Savage's hand, telling him that "it's cool," but when Savage turned away, appellant again put the gun to Savage's head, saying, "Man, fuck it. I ought to kill you right now. Man, I don't care who you is." Appellant reentered the truck and began to drive off. Savage ran after him, and appellant fired two shots at him. Savage jumped in a ditch. According to Savage, the entire episode lasted close to an hour. A police officer testified that the truck was later recovered. It had been burned.

Appellant argues that his convictions for aggravated robbery and theft of property should be reversed because Savage's testimony was not sufficient to support the convictions. He asserts that Savage was not credible, presenting a number of reasons why he concludes that Savage's testimony should be discounted, and he further asserts that Savage's testimony was not corroborated. As we noted, however, credibility is a question for the factfinder, and one eyewitness's testimony is sufficient to sustain a conviction. Savage identified appellant in court as the person who took his truck at gunpoint; thus, there was sufficient evidence that appellant committed the crimes of aggravated robbery and theft of property.

Following appellant's conviction of the crimes of aggravated robbery and theft of property, the court held a separate proceeding, with the same jury, on the State's charge that appellant committed the crime of being a felon in possession of a firearm. The State established that appellant was a convicted felon by presenting evidence of appellant's three prior felony convictions. The State rested, but appellant did not move for a directed verdict. After appellant took the stand in his own defense, he rested and moved for a directed verdict on the firearm charge. The court denied the motion.

On appeal, he challenges the sufficiency of the evidence to support the conviction, again arguing that Savage's testimony was insufficient to support the conviction. Appellant, however, failed to move for a directed verdict at the close of the State's case on the firearm charge. Rule 33.1 of the Arkansas Rules of Criminal Procedure provides that "[i]n a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence," and "[t]he failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required ... will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment." Our supreme court has observed that the language in Rule 33.1 is stated in the conjunctive, requiring that a motion for directed verdict be made at the close of the State's case and again at the close of all of the evidence. Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002). The court has further stated that the failure to challenge the sufficiency of the evidence at both the close of the State's case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict on appeal. Id. The court strictly construes Rule 33.1. Id. Thus, appellant's failure to move for a directed verdict at the conclusion of the State's case precludes appellant from challenging the sufficiency of the evidence on appeal.

Affirmed.

Gladwin and Griffen, JJ., agree.