ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR00-679

March 14, 2001

ROBERT LOVETT AN APPEAL FROM JEFFERSON

APPELLANT COUNTY CIRCUIT COURT

[CR99-363-2]

V. HON. H.A.TAYLOR, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Robert Lovett appeals from his conviction for false imprisonment. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Arkansas Supreme Court Rule 4-3(j), appellant's counsel has filed a no-merit brief, and petitions this court to withdraw as counsel. We grant counsel's motion to be relieved and affirm appellant's conviction.

Appellant was charged with the attempted kidnaping of Candace Franklin. The State alleged that on April 9, 1999, appellant attempted to kidnap Ms. Franklin and take her to a storage shed near her house. Appellant was convicted of the lesser included offense of first-degree false imprisonment. He was sentenced as an habitual offender pursuant to Arkansas Code Annotated section 5-4-401 (Repl. 1997) to serve a term of thirty years in the Arkansas Department of Correction.

Sufficiency of the Evidence

Appellant made timely motions for a directed verdict at the close of the State's case and at the close of all of the evidence. He alleged that the State failed to prove that the he took a substantial step in a course of conduct intending to culminate in the commission of a kidnaping. He further argued that the State failed to prove that he was the person who committed any criminal conduct.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. See Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). When we review a challenge to the sufficiency of the evidence, we will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. See id. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. See Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. See Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998).

The evidence supporting appellant's conviction is as follows. Franklin, who was eleven years old at the time of the trial, testified that at approximately 5:00 on April 9, 1998, she took a shortcut through an alley as she was walking from her house to a friend's house. She stated that before she entered the alley she saw appellant, that he ran up behind her, put his hand over her mouth, tore her clothes, and attempted to drag her into a storage shed. During the struggle, appellant dropped a gym bag containing girl's panties, a bra, a knife, and a gun. When appellant released one hand from Franklin in order to gather the items, she broke free and ran home. She testified that appellant told her that he knew her family and where they lived, and that he would kill them all if she told anyone what happened. Later that evening, Franklin's brother noticed her torn clothing and told their mother, Michelle Jordan. When Jordan questioned appellant, she told her mother what happened. Jordan telephoned the police, who came and took a statement from Franklin. She described her assailant as a dark-skinned male with gray and black curly hair and a "spade" shaped beard. She subsequently identified appellant as her attacker from two separate photo lineups. She also identified him in the courtroom at trial. However, at the actual physical lineup, Franklin stated that appellant looked like her attacker, but indicated that she was unsure.

Sergeant Jeff Hubanks of the Pine Bluff Police Department testified that during his initial interview with appellant, appellant stated that he was across town with a woman who worked at a Shell station when the incident occurred, but he could not provide the woman's first or last name. He later told Hubanks that he walked through the alley on April 9 at the approximate time that Franklin reported that she was attacked, but he stated that Franklin was standing on a screened-in front porch at that time. He denied to Hubanks that he chased her or touched her.

Jordan testified that she observed her daughter's torn clothing and asked her what hadhappened. She provided the police a written statement regarding what Franklin told her. Jordan stated that she knew appellant because she had seen him around her current and old neighborhood, and that she did not discuss the incident in detail with her daughter prior to her interview with the police.

A person commits first-degree false imprisonment if he, without consent and without lawful authority, "knowingly restrains another person so as to interfere substantially with his liberty in a manner that exposes that person to a substantial risk of physical injury." See Ark. Code Ann. § 5-11-103(a) (Repl. 1997). Appellant's counsel notes that her strategy at trial was to show that Franklin's testimony was unreliable because she did not reveal what happened until several hours after the attack, and only after she was approached by her mother. Appellant's counsel also attempted to show that Franklin was subconsciously influenced by her mother and the police to name appellant as the attacker. However, the weighing of evidence, the resolution of conflicting testimony, and an assessment of the credibility of witnesses are issues in which wide discretion is given to the fact-finder. See Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994). The credibility of a witness, in particular, is a matter for the trier of fact, and such determinations will not be disturbed on appeal where there is substantial evidence to support the fact-finder's conclusions. See Brenk v. State, 311 Ark. 579, 847 Ark. S.W.2d 1 (1993). Further, where the only issue is assessment of a witness's credibility, we will defer to the trial court's factual findings. See id.

In considering the above evidence in the light most favorable to the State, we holdthat there was substantial evidence from which the trier-of-fact could conclude, without resort to conjecture or speculation, that appellant was Franklin's attacker. Therefore, the trial court did not err in denying appellant's motion for a directed verdict.

Evidentiary Rulings

Appellant made two evidentiary objections below that were not sustained. First, appellant objected to a statement by Detective J.D. Cannon of the Pine Bluff Police Department in which he testified that he showed Franklin a photo lineup and she identified appellant as the person who had assaulted her. Appellant objected on the basis that the testimony was hearsay; the trial court overruled the objection on the ground that there is a hearsay exception for identification purposes.

Appellant's counsel concedes that Arkansas Rule of Evidence 801(d)(1)(iii) provides that a statement is not hearsay when the declarant testifies as to the identification of a person made after perceiving him, and is available for cross-examination. Here, Franklin, the declarant, testified at trial and was available for cross-examination. Whether to allow testimony and to admit evidence lies within the discretion of the trial court. See, e.g., Warner v. State, 59 Ark. App. 155, 954 S.W.2d 298 (1998). Because Cannon's testimony consisted of a statement that is expressly defined under Rule 801(d)(1)(iii) as nonhearsay, the trial court did not abuse its discretion in overruling appellant's objection to Cannon's statement.

The second objection that was not sustained occurred during the State's cross-examination of Michelle Shaw, appellant's girlfriend at the time of the incident. Shawtestified that she did not visit appellant at the jail after he was arrested. The State asked why she had not visited appellant. Appellant objected on relevancy grounds, but the trial court allowed the question. Shaw stated that she did not want to see anyone locked up and that she did not feel it was necessary to determine whether she could assist appellant. She stated that she later spoke with appellant's family, who asked her to talk to appellant's lawyer. She indicated that appellant's lawyer asked if she was with appellant on April 8 and she told him that she was.

Relevant evidence is "any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." See Ark. R. Evid. 401. All relevant evidence is generally admissible. See Ark. R. Evid. 402. However, relevant evidence may be excluded if its probative value is substantially outweighed by it prejudicial effect. See Ark. R. Evid. 403. Shaw testified that appellant was with her all day on the day Franklin was attacked. While the trial court did not state why it thought Shaw's testimony regarding why she had not seen appellant since he went to jail was relevant, her testimony is this regard was relevant to show why she did not provide appellant with an alibi sooner, and thus, was relevant to her credibility as a witness. Therefore, we hold that the trial court did not err in overruling appellant's objection with regard to Shaw's testimony.

Jury Instruction

The final adverse ruling occurred at the close of the case. When appellant renewed his motion for a directed verdict, he also argued that the evidence did not support aninstruction for attempted kidnaping. We note that appellant's counsel failed to address this issue in his brief. However, pursuant to Anders, supra, we raise this issue on our own motion upon a full examination of the proceedings as a whole. See Anders, supra at 744.

Our case law is clear that a trial court is required to give a jury instruction when it is a correct statement of the law and when there is some basis in the evidence to support giving the instruction. See Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999); Hopper v. Garner, 328 Ark. 516, 944 S.W.2d 540 (1997). The trial court's instruction as to the charge of attempted kidnaping was as follows:

A person commits the offense if attempted kidnaping if first, [sic.] that Robert Lovett did, without consent of Candace Franklin, restrain her so as to interfere substantially with her liberty, and second, that Robert Lovett restrained Candace Franklin with the purpose of facilitating the commission of any felony or flight thereafter.

To sustain the charge of attempted kidnaping, the State must prove the following things beyond a reasonable doubt. First, that Robert Lovett intended to commit the offense of kidnaping and second, that Robert Lovett purposely engaged in conduct that was a substantial step in a course of conduct intended to culminate in the commission of kidnaping. And third, that Robert Lovett's conduct was strongly corroborative of the criminal purpose.

The court wants to give you the definition of "purposely." A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in that conduct.

These instructions appear to provide a correct statement of the law. See Ark. Code Ann. §§ 5-11-102(a)(3) (Repl. 1997) (defining the offense of kidnaping) & 5-2-202(1) (defining "purposely"). Further, based on the testimony presented at trial, there was some basis in the evidence to support such instructions. Moreover, appellant was convicted of first-degree false imprisonment, not attempted kidnaping; therefore, he cannot demonstratethat he was prejudiced by the instruction. We find the trial court did not err in issuing an instruction on attempted kidnaping.

Affirmed.

Crabtree and Baker, JJ., agree.