Ray McBride, Sr. v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

RAY MCBRIDE, SR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-570

MARCH 9, 2005

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. CR2002-89-3]

HONORABLE ROBERT BYNUM GIBSON JR., CIRCUIT JUDGE

AFFIRMED

Karen R. Baker, Judge

A jury in Chicot County Circuit Court convicted Ray McBride, Sr. of fleeing. He received a fine of one dollar. McBride argues on appeal that pursuant to Ark. R. Crim. P. 3.1 "the trial court erred when it denied his motion for a directed verdict based on the argument that there was no basis for an investigatory stop because there was no reasonable suspicion that he committed or was about to commit a felony or a misdemeanor involving danger or forcible injury to persons or appropriation of or damage to property." We affirm. At trial, Officer Hayes of the Lake Village Police Department testified that on October 21, 2000, he and another officer received an anonymous call that appellant and Jason Gregg were "hanging around the back of the police department in the alley" and acting suspicious. When Officer Hayes pulled up to the alley beside the department, he saw appellant's vehicle. He pursued the vehicle in order to make an investigatory stop. He stated that he felt he should investigate because the police department had been vandalized only a few nights before.

Further, Jason Gregg, a former police officer, was under investigation for breaking into the police department evidence room and stealing guns. Moreover, while Officer Hayes was pursuing appellant, he received a call over the radio that a flyer had been placed on the police department building and that a window had been broken.

Officer Hayes stated that while he followed appellant, he initiated his blue lights and activated his siren. He observed appellant "yield" at one stop sign. However, appellant ran a second stop sign and failed to signal that he was turning. The officer testified that during the time he pursued appellant, they were traveling twenty to twenty-five miles per hour. When appellant finally pulled into his son's driveway, Officer Hayes shouted for the driver to exit the vehicle; however, appellant did not exit immediately.

Following Officer Hayes's testimony, the State rested, and appellant's counsel made the following motion for a directed verdict:

I move for a dismissal on the charge of fleeing, because I don't believe under Rule 3.1 the law-enforcement officer has demonstrated that he had any basis to reasonably suspect that Mr. McBride had committed or was about to commit either a felony or a misdemeanor involving danger or forcible injury to persons appropriation, damage to property.

The trial court denied the motion.

Appellant testified that as he pulled out of an alley near the police department, his vehicle was pursued first by Officer Hayes and then by Officer Charles Moore. Appellant testified the officers did not turn on their lights, and only "flicked" on a siren long enough to make a sound. Appellant did not immediately pull over. He explained that he had previously filed numerous complaints with the sheriff regarding the Lake Village Police, and the sheriff had instructed him to go to a well-lit, public area if he were ever being pursued by the Lake Village Police. Appellant testified that he followed the sheriff's instructions and waited until he arrived at his son's house to stop for the officer, which was three-tenths of a mile away. His son was a police officer in Dumas and Greenville. Appellant felt safe stopping at his son's house because it was well-lit, and he knew his son, daughter-in-law, and grandson were home at the time.

Chicot County Sheriff, Floyd White, testified that he was aware that appellant and his family perceived themselves to have been harmed by an officer of the Lake Village Police Department and that appellant had filed complaints regarding The Lake Village Police. Sheriff White also testified that he advised appellant to proceed to a lighted or public area if he were to come into contact with an officer of the Lake Village Police Department. Sheriff White received a call on the night of October 21, informing him that a Lake Village Police Officer was attempting to make contact with appellant.

Following this testimony and two other witnesses whose testimony did not relate to the stop, appellant's counsel renewed the motion for directed verdict, and the motion was again denied. Appellant was convicted of the offense of fleeing and fined one dollar. This appeal followed. Arkansas Code Annotated section 5-54-125(a) (Repl. 1997) defines fleeing as: "If a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance."

On appeal, appellant does not challenge the sufficiency of the evidence supporting his conviction. Instead, he argues that the trial court erred in denying his motion for a directed verdict. His argument is based on Rule 3.1 of the Arkansas Rules of Criminal Procedure (2004), which states in part that:

A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

In general, a motion for directed verdict is a challenge to the sufficiency of the evidence. Aydelotte v. State, 85 Ark. App. 67, 146 S.W.3d 392 (2004) (citing Cherry v. State, 80 Ark. App. 222, 95 S.W.3d 5 (2003)). Appellant's reliance on Rule 3.1 in the context of a directed-verdict motion is misplaced. In Berry v. State, 74 Ark. App. 141, 143, 45 S.W.3d 435, 437 (2001), appellant requested that this court find that "the detention of the appellant by Officer King amounted to an illegal arrest or, in the alternative, that Act 1077 as applied to the appellant violated the ex post facto law." This court held that, "even assuming that appellant is correct in that he was illegally arrested, an invalid arrest may call for the suppression of a confession or other evidence, but it does not discharge a defendant from the responsibility of the offense." Id. (citing Urquhart v. State, 30 Ark. App. 63, 782 S.W.2d 591 (1990) (citing Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989)); see also Lamb v. State, 21 Ark. App. 111, 730 S.W.2d 252 (1987) (affirming defendant's conviction of driving while intoxicated where an officer had the authority to issue a citation even though outside her jurisdiction).

In this case, appellant never sought the suppression of evidence due to a violation of Rule 3.1. In fact, no evidence obtained from the stop was introduced by the State, other than appellant's identity. Officer Hayes did testify that it was not until appellant finally stopped his vehicle in his son's driveway that he became aware of appellant's identity; however, appellant failed to object to the introduction of this testimony. Other than appellant's identity, the State's evidence consisted solely of the officer's observations prior to the stop. Because appellant did not seek suppression of the State's evidence, object to the introduction of the evidence, or challenge the sufficiency of the evidence, we hold that the trial court did not err in denying appellant's motion for directed verdict. Accordingly, appellant's conviction is affirmed.

Affirmed.

Bird and Crabtree, JJ., agree.