Charles Cox v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 25, 2001

CHARLES COX

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-373

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, NO. CR 97-31 HONORABLE JOHN B. PLEGGE, JUDGE

AFFIRMED

Appellant was convicted of aggravated robbery and theft of property. He was sentenced to ten and three years' imprisonment, which sentences were ordered to be served concurrently. The Arkansas Court of Appeals affirmed the convictions and sentences in an unpublished opinion. Cox v. State, CA CR 98-281 (Ark. App. Nov. 11, 1998). Subsequently, appellant filed a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37, alleging nine claims of ineffective assistance of counsel. A hearing was held, and the circuit court denied the petition. Appellant filed a timely notice of appeal. We find no error and affirm.

As mentioned, appellant raises nine claims of ineffective assistance of counsel; however, the only claim raised on appeal is that the circuit court erred in finding that trial counsel was not ineffective when she failed to make a specific argument in her motion for directed verdict. Appellant claims that trial counsel should have included in her motion a challenge to the sufficiency of the evidence regarding the element of intent. The sufficiency of the State's evidence of intent to commit theft was not considered by the Arkansas Court of Appeals, because appellant's trial counsel failed to preserve the issue for review. Cox, supra.

The Supreme Court enunciated the standard for assessing the effectiveness of counsel in Strickland v. Washington, 466 U.S. 668, 687 (1984):

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Id. at 687. Thus, a defendant must first show that counsel's performance "fell below an objective standard of reasonableness," id. at 688, and second, that the errors, "actually had an adverse effect on the defense." Id. at 693.

In reviewing a denial of relief under Rule 37, we must indulge a strong presumption that counsel's conduct falls within the range of reasonable professional assistance. Noel v. State, 342 Ark. 35, 38, 26 S.W.3d 123, 125 (2000). To rebut this presumption, appellant must show that there is a reasonable probability that, but for counsel's errors, the factfinder would have had a reasonable doubt respecting guilt in that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id.

Ineffective assistance of counsel cannot be established by a mere showing of error by counselor by revealing that counsel's failure to object prevented an issue from being addressed on appeal. Thomas v. State, 330 Ark. 442, 448, 954 S.W.2d 255, 258 (1997) (citing Huls v. State, 301 Ark. 572, 785 S.W.2d 467 (1990)). We must consider the totality of the evidence before the factfinder, and we will not reverse the denial of postconviction relief unless the lower court's findings are clearly against the preponderance of the evidence. Noel, 342 Ark. at 38, 265 S.W.3d at 125.

Appellant argues that the element of intent to commit a theft is missing; therefore, if trial counsel had properly moved for a directed verdict on this point, the outcome of the trial would have been different. In denying relief on this claim, the circuit court held that based upon the totality of the evidence, appellant was not prejudiced by trial counsel's failure to move for a directed verdict. Even if trial counsel had properly moved for directed verdict, the testimony when taken as a whole does not lead to the conclusion that there was a reasonable probability that the trial judge would have granted the motion.

"A person commits robbery if, with the purpose of committing a felony or misdemeanor theft ... he employs or threatens to immediately employ physical force upon another." Ark. Code Ann. § 5-12-102 (Repl. 1997). "A person commits theft of property if he knowingly takes or exercises unauthorized control over ... the property of another person, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1).

At trial, the victim, Marcus Bell, testified that the appellant put a handgun to the victim's head and asked for the victim's keys. Officer Charles Allen of the Little Rock Police Department also testified that the victim's keys were found on the appellant and then returned to Mr. Bell. Appellant does not deny that these were the events that took place the night of the incident. Instead, appellant claims that he did not possess the requisite intent to commit the theft.

A person is presumed to intend the natural and probable consequences of his acts. Smith v. State, 65 Ark. App. 216, 219, 986 S.W.2d 137, 138 (1999). A jury may reasonably infer that appellant intended to commit theft when he pointed the gun at the victim's head and asked for his keys. Id. We hold that there was substantial evidence presented to support the jury's verdict that appellant exercised unauthorized control over the victim's car keys; therefore, appellant was not prejudiced by trial counsel's failure to preserve the issue of sufficiency of the evidence on appeal. Appellant has not satisfied the two-prong test of Strickland; therefore, the order of the circuit court denying appellant's petition is affirmed.

Affirmed.