Ray Thompson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

RAY THOMPSON,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR04-417

June 29, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION,

(NO. CR2002-4057),

WILLARD PROCTOR, JUDGE

AFFIRMED

Sam Bird, Judge

Appellant Ray Thompson was convicted by a jury of second-degree forgery and was sentenced as a habitual offender to twenty-five years in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, counsel for Thompson has filed a motion to withdraw on the ground that the appeal of this case is without merit. The motion was accompanied by a brief discussing all matters in the record that might arguably support an appeal, together with a statement as to why counsel considers these matters as being incapable of supporting a meritorious appeal. Thompson was provided with a copy of his counsel's brief and was notified of his right to file a pro se listing of points for reversal within thirty days. He filed no points. We affirm and grant counsel's motion to withdraw.

Motion for Directed Verdict

First, at the close of the State's case-in-chief, Thompson moved for a directed verdict on the grounds that the State failed to show that he had the requisite intent to commit the offense. The trial court denied the motion. Thompson renewed the motion at the close of all of the evidence, and the trial court again denied it.

It is well-settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). For evidence to be sufficient, there must be substantial evidence, direct or circumstantial, to support the verdict, meaning that the evidence must be forceful enough to compel a conclusion one way or the other without having to resort to speculation and conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). In reviewing a challenge to the sufficiency of the evidence, the court will view the evidence in a light most favorable to the State and consider only the evidence that supports the conviction. Id.

Circumstantial evidence may constitute substantial evidence to support a defendant's conviction, but only if it excludes every reasonable hypothesis other than the guilt of the accused. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). The question of whether circumstantial evidence excludes every other reasonable hypothesis consistent with innocence is generally reserved for the fact-finder. Id. Furthermore, a criminal defendant's intent or state of mind can rarely be proven by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

Arkansas Code Annotated section 5-37-201(a) (Repl. 1997) states as follows:

A person forges a written instrument if with the purpose to defraud he draws, makes, completes, alters, counterfeits, possesses, or utters any written instrument that purports to be or is calculated to become or to represent if completed the act of a person who did not authorize that act.

(Emphasis added.) In this case, the State presented evidence that Thompson possessed a check bearing a false endorsement. There was also testimony that, when Thompson presented the check to the bank, the bank manager refused to honor the check or return it to Thompson, that the manager called the police, and that Thompson subsequently left the bank. Although Thompson claimed that he was just "depositing a check for someone" and that he did not feellike it was "important enough to stay and talk to the police," the jury was not required to believe this testimony. See Coggin v. State, 356 Ark. 424, 156 S.W.3d 712 (2004) (recognizing that the jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's). Based on the evidence presented at trial, the jury could have inferred that Thompson had the purpose to defraud under Ark. Code Ann. § 5-37-201(a). Thus, there is substantial evidence to support appellant's conviction for second-degree forgery.

Thompson's Absence During Sentencing

Finally, Thompson was not present when the trial judge pronounced a twenty-five-year sentence against him. Arkansas Code Annotated section 16-89-103(a)(2)(B) (Supp. 2003) states that, if an indictment is for a felony and the defendant absents himself during trial, "judgment shall not be rendered until the presence of the defendant is obtained." However, Thompson's counsel points out that he failed to object to the rendering of judgment against Thompson and that Thompson is therefore barred from obtaining reversal of his sentence. We agree. First, it is well-settled that we will not address arguments raised for the first time on appeal. Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000). Furthermore, in Parrish v. State, 65 Ark. App. 66, 984 S.W.2d 460 (1999), we recognized that a defendant who voluntarily flees from a courtroom proceeding may waive his right to be present at the proceeding.

Here, Thompson apparently left the trial to use the restroom, but he never returned; his counsel then failed to object to his absence during sentencing. Because Thompson voluntarily fled the courtroom and because his counsel failed to raise the issue below, we agree that any argument regarding Thompson's absence during sentencing was waived.

From a review of the record and the brief presented to this court, we find compliance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and pursuant to the requirements of Anders, we hold that there is no basis for reversal. Accordingly, we affirm the trial court's decision and grant counsel's request to withdraw.

Affirmed; motion granted.

Hart and Crabtree, JJ., agree.