Cite as 2011 Ark. App. 27 ARKANSAS COURT OF APPEALS DIVISION III No. CACR10-573 Opinion Delivered January 12, 2011 APPEAL FROM THE CLARK DONALD JONES COUNTY CIRCUIT COURT APPELLANT [NO. CR-2009-58] V. HONORABLE ROBERT MCCALLUM, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED DAVID M. GLOVER, Judge Appellant, Donald Jones, was tried by a jury and found guilty of the offense of fleeing, a Class D felony. He was sentenced to 144 months in the Arkansas Department of Correction as an habitual offender. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4–3(k) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant’s counsel has filed a motion to withdraw, asserting that the appeal is wholly without merit. A motion of this type must be accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal, including all motions, objections, and requests decided adversely to appellant, along with a statement of reasons why none of those rulings would be a meritorious ground for reversal. Counsel’s brief accompanied his motion to withdraw. Appellant was
Cite as 2011 Ark. App. 27 provided with a copy and was notified of his right to file a list of pro se points for reversal within thirty days, which he has done. The State has responded. We affirm appellant’s conviction and grant his counsel’s motion to withdraw. There were three basic rulings that were adverse to appellant: 1) the denial of his motions for directed verdict; 2) the overruling of his objections to questions directed at his alibi witness, Gayle Jones, Jr., as going beyond the scope of direct examination; and 3) the exclusion from the courtroom of sentencing witnesses during the case in chief. None of these adverse rulings would provide a meritorious ground for reversal. Rule 33.1(c) of the Arkansas Rules of Criminal Procedure requires specificity in stating the grounds upon which the motion is based. Appellant moved for directed verdict at the close of the State’s case “based on failure to establish a prima facie case and the insufficiency of the evidence.” The motion was renewed at the close of the defense case, “based on the same reason as previously,” and again at the end of rebuttal, “for the same reasons.” The failure to state specific grounds for dismissal waives any argument regarding the sufficiency of the evidence on appeal. M.W. v. State, 2010 Ark. App. 799. Officer John Thomason testified during the State’s case in chief and also during the defense case. Upon questioning by the defense, he stated that he did not call dispatch to check the registration of the car that he was chasing because he recognized the car as belonging to Jamie Loy. During its cross-examination of Gayle Jones, Jr., appellant’s brother, the State asked Jones if appellant and Jamie Loy had a romantic relationship, if appellant owned a -2-
Cite as 2011 Ark. App. 27 vehicle, if appellant had a driver’s license, and how he got around. Defense counsel objected, contending that the questions went beyond the scope of direct examination. The trial court overruled the objection. Ms. Jamie Loy, who was serving time in prison on a forgery charge at the time of trial, testified on rebuttal that she was in the car that fled from police on March 28, 2009, and that appellant was driving that car. Our appellate courts will not reverse a trial court’s ruling on the admissibility of evidence absent an abuse of discretion and a showing of prejudice. James v. State, 2010 Ark. 486. The relationship between appellant and Loy and how appellant “got around” was relevant to this case. We find no abuse of discretion in the trial court allowing this line of questioning. Before the State began its case in chief, the trial court informed those present that Rule 615 of the Arkansas Rules of Evidence had been invoked, requiring witnesses to remain outside the courtroom unless they were called to testify. Norma Jones commented that she was “just going to be a character witness,” but the court told her that the rule also applied to her. Defense counsel approached the bench and stated her understanding that sentencing witnesses were allowed to remain in the courtroom if they did not have any knowledge of the substantive issues of the case. A colloquy among the court and the attorneys followed with defense counsel candidly acknowledging that she did not have any authority for her position because it had never come up before. The prosecutor offered to be excused to search for legal authority, but defense counsel responded that it was “not that big of a deal to my client whether she stays in here or not.” The trial court then stated that it was going to apply the -3-
Cite as 2011 Ark. App. 27 rule to all witnesses “until one of the parties or lawyers makes me aware that I’m wrong about that.” Appellant’s initial objection was, therefore, waived and does not provide a meritorious ground for reversal. Appellant’s pro se points for reversal challenge the sufficiency of the evidence supporting the conviction, assert a Batson violation under Batson v. Kentucky, 476 U.S. 79 (1986), contend that he was erroneously sentenced as an habitual offender, and claim that his sentence is excessive. These points do not provide a meritorious ground for reversal either. As discussed earlier in this opinion, the challenge to the sufficiency of the evidence was not properly preserved. In addition, the record does not reveal that appellant raised a Batson challenge below; therefore, such an argument was not preserved for review. In arguing that the State erred in charging him as an habitual offender, appellant simply asserts that he did not have two similar crimes. Such an argument was never made below; therefore, it is not preserved for review. Finally, appellant states that his sentence was excessive because “Class D felonies carry 0–6 years,” and he was sentenced to twelve years. The argument does not provide a meritorious ground for reversal. An habitual offender who is convicted of a Class D felony is subject to an extended term of imprisonment of not more than twelve years. Ark. Code Ann. § 5-4-501 (a)(2)(E) (Supp. 2007). Appellant was charged as an habitual offender; he was found guilty of fleeing, a Class D felony; and the trial court sentenced him to twelve years in the Arkansas Department of Correction, as it was authorized to do. Affirmed; motion to be relieved granted. VAUGHT, C.J., and HART, J., agree. -4-
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