Christopher Goodrum v. State of Arkansas

Annotate this Case
ar03-969

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-969

SEPTEMBER 8, 2004

CHRISTOPHER GOODRUM AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR02-2542]

v.

STATE OF ARKANSAS HONORABLE TIM FOX, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant, Christopher Goodrum, brings this appeal from his convictions in the Pulaski County Circuit Court for the commercial burglary of U.S. Fuel (d/b/a Shawn's One Stop) in North Little Rock and the theft of property (cigarettes) committed while therein. He was sentenced to 360 months' imprisonment. On appeal, appellant asserts that (1) he was denied effective assistance of counsel and (2) the evidence was insufficient to sustain his convictions. We affirm.

For purposes of double jeopardy, we address Mr. Goodrum's challenge to the sufficiency of the evidence first. Woolbright v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 22, 2004). Appellant argues that the evidence was insufficient to sustain his convictions. Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 22, 2004). When reviewing the denial of a directed-verdict motion, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and will affirm if there is substantial evidence to support the jury's conclusion. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Id.

The fact that evidence is circumstantial does not render it insubstantial; where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Isom v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 19, 2004). Such a determination is a question of fact for the fact-finder to determine. Id. The credibility of witnesses is an issue for the jury and not the court. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id.

At trial, defense counsel made a directed-verdict motion in which she argued that the State failed to prove "that [appellant] broke into a commercial structure intending to commit a theft." A person commits commercial burglary if he enters or remains unlawfully in a commercially occupiable structure of another with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(b)(1) (Repl. 1997); Geer v. State, supra. Commercial burglary is a Class C felony. Ark. Code Ann. § 5-39-201(b)(1) (Repl. 1997).

At trial, Shawn Sadiq, owner of the Shawn's One Stop, testified that on the morning of April 19, 2002, he received a telephone call from ADT, indicating a break-in. The bookkeeper, Wayne Tucker, also called, requesting that Mr. Sadiq come to the store. Once he arrived, Mr. Sadiq found the glass door to his store broken and the Marlboro cigarette display empty. Mr. Sadiq testified that a police detective brought him some cigarettes later that morning, and he identified them as having been inside the display case based on his identification of the cigarettes by the distributor's random numbers placed on the packets. Mr. Sadiq acknowledged that he did not know the appellant and had not authorized him to break into his store.

Officer John Desizlets of the North Little Rock Police Department also testified. He testified that when he was assigned the case on April 19, 2002, appellant was already in custody. He had been taken into custody by the Little Rock Police Department. The Little Rock Police Department took appellant into custody at around 4:22 a.m. because he matched the suspect's description and the vehicle matched the vehicle description from the security video at Shawn's One Stop. The police found several cartons of cigarettes inside the vehicle. There were six other people in the vehicle when it was stopped. Desizlets did not know who was driving the vehicle when it was stopped.

Desizlets testified that he interviewed appellant at approximately 6:41 a.m. on April 19, 2002. He testified that he informed appellant of his Miranda rights and that appellant initialed the provisions and signed the form. Desizlets testified that appellant admitted to having broken into Shawn's One Stop and having removed the cigarettes. Appellant did not testify.

Giving due deference to the jury's determination of credibility as to Desizlets's testimony that appellant admitted to stealing the cigarettes, we must affirm. Isom v. State, supra.

Further, the directed-verdict motion made by counsel for the theft-of-property charge was insufficient. At trial, appellant's counsel merely stated, "they also failed to make a prima facie case that he stole the cigarettes." She did not specify how the State failed to meet its proof. A directed-verdict motion that asserts only that the State did not make a prima facie case is not sufficiently specific to preserve the issue for review. Crisco v. State, 328 Ark. 388, 943 S.W.2d 582 (1997). This failure to make a specific motion precludes our review of the issue.

Appellant also argues that he was denied effective assistance of counsel at trial. It is well settled that this court will not consider ineffective assistance of counsel as a point on direct appeal unless that issue has been considered by the trial court. Ratchford v. State, ___ Ark. __, __ S.W.3d ___ (Apr. 15, 2004). Because appellant's ineffective assistance of counsel claim was not posed to the trial court below, we do not reach this argument on direct appeal. Nevertheless, appellant is not precluded from now filing a Rule 37 petition.

Affirmed.

Stroud, C.J., and Crabtree, J., agree.