ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

TERRANCE ROBINSON AND TAMAGUM ANTONIO ROBINSON

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR99-1112

MARCH 7, 2001

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR1998-903, 904 & 908 ]

HONORABLE DAVID BURNETT,

CIRCUIT JUDGE

AFFIRMED

Following a jury trial, appellant Terrance Robinson was found guilty of unlawful possession of a firearm, and unlawful discharge of a firearm from a vehicle. Appellant Tony Robinson was found guilty of unlawful discharge of a firearm from a vehicle. They were sentenced to a total of thirty-one years and eighteen years respectively. Appellants argue seven points for reversal, none of which has merit. We affirm.

On September 21, 1998, Mr. Gillum and his wife were in their driveway. Mr. Gillum testified that when he got out of his car with his back to the street he heard gunfire. When the shooting paused, he turned around and saw a two-door car with Terrance Robinson in the front seat of the passenger side, and Tony Robinson in the back seat of the passenger side. Both men were leaning out the passenger-side window shooting at him. Mr. Gillum was

struck by one bullet. Appellants presented alibi testimony that placed them elsewhereat the time of the shooting.

Appellants assert there was insufficient evidence to support the verdicts and the trial court erred in failing to direct a verdict on the charges. When an appellant challenges the sufficiency of the evidence, we address this issue prior to all others. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Appellants' argument focuses on the testimony of alibi witnesses which placed appellants elsewhere on the night of the shooting. This testimony contradicted the victim's testimony. Reversible error on the basis of insufficient evidence cannot be supported by credibility issues. Credibility determinations are for the fact finder and this court is bound by those determinations on appeal. See, e.g., Killian v. State, 60 Ark. App. 127, 130, 959 S.W.2d 432, 434 (1998). Mr. Gillum identified appellants as the shooters. An eyewitness account of a crime may alone be substantial evidence to support a conviction. Wesley v. State, 318 Ark. 83, 84, 883 S.W.2d 478, 479 (1994). We hold that there was sufficient evidence to support the jury's findings, and the trial court did not err in refusing to direct a verdict.

Appellants' second point for reversal is not preserved for appellate review. They argue that the trial court erred in admitting a picture of a black car on a cassette tape and testimony concerning the ownership of the car in the photograph. In order to preserve a challenge to the admission of a photographic exhibit, an appellant must reproduce it in the brief pursuant to Ark. Sup. Ct. R. 4-2(a)(6)(2000), or obtain permission to waive the requirements of that rule. Coney v. State, 319 Ark. 709, 711, 894 S.W.2d 583, 584 (1995). Appellants met neither of these requirements and failure to do so requires affirmance on theissue of the photographic exhibit.

In appellants' third point, they argue that the trial court erred in refusing to instruct the jury that the defendants had no obligation to give a statement to the police. A defendant cannot invite error, by eliciting certain testimony, and later complain when the State elicits similar testimony. Williams v. State, 65 Ark. App. 176, 180, 986 S.W.2d 123, 126 (1999). Defense counsel elicited the following testimony from Officer Stewart, concerning appellants' post-arrest silence, by asking, ". . . did you ever contact me to see if my clients would make any statements?" Officer Stewart replied, "No, ma'am, because . . . I read him his rights and he told me he didn't want to make any statement." Defense counsel continued, "You never contacted me to inquire if there was any - if we had any witnesses that ought to be talked to." In response, during cross-examination of appellant Terrance Robinson, the prosecutor asked if this was the first time he had told that story. Defense counsel objected saying that the combination of Officer Stewart's testimony and the prosecutor's question to Terrance Robinson made it "sound like he's being uncooperative, and I think there needs to be a limiting instruction that tells the jury he has no obligation" to make a statement until he took the stand. Appellants cannot show prejudice from the State's later reference because appellant opened the door, by first bringing the matter to the jury's attention. Willis v. State, 412, 334 Ark. 423, 977 S.W.2d 890, 896.

Appellants argue, for their fourth point, that the trial court erred in failing to instruct the jury as to the defense of alibi. We do not consider this argument because appellants failed to proffer the requested instruction. Id. at 418, 977 S.W.2d at 893. A profferedinstruction must be included in the abstract in order for the appellate court to consider it on review. Criddle v. State, 338 Ark. 744, 1 S.W.3d 436 (1999). Appellants' abstract lacks a proffered instruction, and we do not consider the merits of this argument.

Appellants' fifth point for reversal, that the trial court erred in denying their motion for new trial, fails because the motion for new trial was filed prior to the entry of the judgment and commitment orders. The motion for new trial was filed on May 10, 1999, but appellants' judgment and commitment orders were not entered until May 24, 1999. Their motion was untimely and we do not reach the merits of this argument. See Davies v. State, 64 Ark. App. 12, 977 S.W.2d 900, (1998).

The sixth point, that the trial court erred in admitting testimony regarding alleged police involvement in the shooting, fails because no effective objection was made at trial. An argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Pharo v. State, 30 Ark. App. 94, 783 S.W.2d 64 (1990). The objection must be timely, affording the trial court an opportunity to correct the asserted error. Clark v. State, 26 Ark. App. 268, 764 S.W.2d 458 (1989).

Appellants, for their final point, allege that the trial court erred by not finding prosecutorial misconduct. We will not consider assignments of error which are unsupported by convincing argument or citation to authority. Jenkins v. State, 60 Ark. App. 1, 7, 959 S.W.2d 57, 59 (1997). The failure of appellants to cite authority or make a convincing argument is sufficient reason for affirmance of the trial court's ruling on this point. See Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997).

Affirmed.

Griffen and Crabtree, JJ., agree.