Christopher Bernard West v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar04-589

DIVISION III

CACR04-589

JUNE 29, 2005

CHRISTOPHER BERNARD WEST AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT [CR-2003-340]

V.

STATE OF ARKANSAS HONORABLE JOHN W. LANGSTON, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

The State charged appellant by information with robbery, felony theft by receiving, felony fleeing, and aggravated assault. He was also charged as a habitual offender for having had four or more prior felonies. The trial court found appellant guilty of robbery, misdemeanor theft by receiving, and misdemeanor fleeing. The aggravated assault charge was dismissed. The court sentenced appellant to 120 months' imprisonment on the felony charge; appellant received one year for each of the misdemeanor convictions, which were to be served concurrent to the felony conviction.

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, appellant's counsel has filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by a brief purportedly discussing all matters in the record that might arguably support an appeal, including the adverse rulings, and a statement as to why counsel considers each point raised as incapable of supporting a meritorious appeal. Appellant was providedwith a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days; he filed no points.

The facts are these. On December 19, 2002, Peggy Dodge was at the Otter Creek Post Office, when a black man approached her and told her to give him her keys. Dodge started running, and the man grabbed the keys out of her hand and took her vehicle. The vehicle was a 1998 Chevrolet Lumina. Dodge could not identify the man.

Cecillia Sherry, an employee of Site Oil on Cantrell, testified that, on December 21, 2002, she had contact with appellant. Sherry testified that appellant walked into the store and grabbed three thirty-packs of Budweiser and walked out of the store. She testified that another employee, Amy Goldbaum, ran after him. Goldbaum struggled with appellant, and Sherry then pepper-sprayed appellant. Appellant dropped the beer and drove away. Sherry got the vehicle's tag number and called the police.

Amy Goldbaum testified that she saw appellant with the beer, and she chased him out to the parking lot. She demanded that he give back the beer. Goldbaum testified that appellant pushed her with his arm and tried to head-butt her three or four times; appellant also called her names.

Officer Antonio Metcalf testified that he was working on December 21, 2002, when he made contact with appellant. Metcalf heard the broadcast of the robbery and observed the vehicle with the recalled license plate. The car was a 1998 Chevy Lumina. Metcalf initiated a stop; appellant sped away and ran a stop sign. Appellant jumped out of the car, and a chase ensued. He was thereafter captured and arrested. From appellant's subsequent convictions, his counsel now requests to be relieved as counsel.

The three adverse rulings against appellant include his convictions. A motion for a directed verdict challenges the sufficiency of the evidence. Hall v. State, ___ Ark. ___, ___S.W.3d ___ (Apr. 14, 2005). The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id.

A. Robbery

A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Ark. Code Ann. § 5-12-102 (Repl. 1997).

The testimony from the Site Oil employees was that, while attempting to take three thirty-packs of beer from the store without paying for them, appellant pushed Goldbaum and tried to head-butt her numerous times. Therefore, substantial evidence supports his conviction for robbery.

B. Misdemeanor theft by receiving

(a) A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe that it was stolen.

....

(c) The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he or she knows or believes that the property was stolen.

....

(e)(1) Theft by receiving is a Class B felony if the value of the property is two thousand five hundred dollars ($2,500) or more.

....

(3) Otherwise, theft by receiving is a Class A misdemeanor.

Ark. Code Ann. § 5-36-106 (Supp. 2003).

At the close of the State's case, appellant asked for a directed verdict because the State did not prove that the value of the stolen car was $2500 or more at the time of the theft. Thismotion was renewed at the close of all the evidence, where appellant argued that the value was not proven and that the State produced no evidence that he knew or should have known that the vehicle was stolen. The court convicted appellant of misdemeanor theft by receiving. Appellant never requested a directed verdict on the misdemeanor theft by receiving conviction; therefore, no challenge to its sufficiency can be had. See Clements v. State, 80 Ark. App. 137, 91 S.W.3d 532 (2002) (holding the appellant did not preserve the issue of sufficiency on appeal because his directed-verdict motion to the trial court addressed only second-degree battery and his renewed motion for directed verdict requested in the alternative that the trial court reduce the count to third-degree battery, further indicating that his motion was not directed to the lesser offense).

Even if the issue had been preserved, substantial evidence supports the conviction. Dodge testified that she owned a 1998 Chevy Lumina that was stolen by a man at the Otter Creek Post Office. Site Oil employees Goldbaum and Sherry gave the police the tag on a vehicle driven by a man they observed come into their store and try to steal beer; appellant was the man they identified. Officer Metcalf found the vehicle with a tag matching that given by Goldbaum and Sherry. It was a 1998 Chevy Lumina, and appellant was its driver. Appellant acknowledged that he tried to steal the beer and that he was driving the 1998 Chevy Lumina when stopped by the police. Appellant testified that a man he knew from smoking crack, but could not name, "just gave" him the car and told him that the car belonged to the man and his wife.

Based on the foregoing, there was sufficient evidence for the fact finder to determine that appellant knew or should have known that the car was stolen. Furthermore, appellant requested in his directed-verdict motion that the court direct a verdict in his favor because the State had failed to prove that the value of the 1998 Chevy Lumina was $2,500 or moreand that the State had failed to prove that he knew or should have know that the car was stolen. The court, convinced that the State had failed to prove value, convicted appellant of misdemeanor theft by receiving instead. In essence, appellant was granted a form of the relief he requested. Therefore, he can not complain about this favorable outcome on appeal. See Clements v. State, supra.

C. Fleeing

The final adverse ruling was appellant's conviction for fleeing. Arkansas Code Annotated section 5-54-125 (Repl. 1997) provides in part that:

(a) 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.

(b) Fleeing is a separate offense and shall not be considered a lesser included offense or component offense with relation to other offenses which may occur simultaneously with the fleeing.

(c) Fleeing on foot shall be considered a Class C misdemeanor, except under the following condition:

...

(1) Feeling by means of any vehicle or conveyance shall be considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person or persons.

Although appellant made a directed verdict motion on this count at the close of all the evidence, he did not move for a directed verdict on this count at the close of the State's case. Arkansas Rule of Criminal Procedure 33.1 requires that a motion for directed verdict be made at the close of the State's case and again at the close of all evidence. This renewal is more than a matter of mere form; it goes to the substance of evidence arrayed against the criminal defendant. Romes v. State, 356 Ark. 26, 144 S.W.3d 750 (2004). 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 constitutes a waiver of any question pertaining to sufficiency of the evidence on appeal. Id. Because appellant did not challenge the sufficiency of the evidenceon the fleeing charge at the close of the State's case, he waived any question pertaining to that issue.

In conclusion, the record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, and the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Affirmed.

Gladwin and Baker, JJ., agree.