ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

TROY DAVID RUPE,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-963

April 25, 2001

APPEAL FROM THE LINCOLN COUNTY CIRCUIT COURT,

NO. LCR99-82-2,

HON. H. A. TAYLOR, JR., JUDGE

AFFIRMED

Appellant Troy David Rupe brings this appeal from a conviction of first-degree battery for which he was sentenced to fifteen years in the Arkansas Department of Correction. We affirm.

At the jury trial, Jesse Parker testified that he had contacted Rupe to ask Rupe to contact Monticello Commercial Bank concerning the repayment of three loans Rupe had been given by the bank in order to purchase automobiles. After Rupe failed to contact the bank, Parker returned to Rupe's residence with the purpose of repossessing a pickup truck, which was one of the automobiles financed by the bank. Parker testified that he walked to the rear of the property and found Rupe standing near the end of the pickup truck, holding a hoe in one hand. Parker asked Rupe if he could take the truck, and Rupe stated that no one was going to take something that belonged to him. Parker, who had a set of keys to the truck,walked toward the truck, and Rupe struck him in the arm with the hoe, knocking the

keys out of Parker's hand. The two struggled over the hoe, with Rupe falling to the ground. Rupe then got up, ran, got inside the truck, started it, and drove it into Parker. Parker was thrown onto the hood and then onto the ground. Rupe then backed the truck over Parker, running over his legs, breaking both legs and knees. He continued to back up and drive forward over Parker four times, eventually dragging and knocking him under the shed in the back of the property. In addition to breaking Parker's legs, Rupe also broke loose pins and screws that were already in Parker's left leg. Parker testified that due to the seriousness of the injuries, he could not walk for three and one half months and that he was on crutches for another month and a half.

On cross-examination, Parker testified that because the police had told him that Rupe was a dangerous person and because he thought Rupe had surveillance cameras monitoring Rupe's property, Parker parked his car away from Rupe's house and walked to the house.

Charles McLemore testified that he had investigated the incident, and based upon his findings he requested that charges be filed against Rupe. His investigation supported Parker's explanation of what had happened at the residence. In addition, he stated that the acceleration marks present at the house showed that the pickup truck was trying to gain traction.

John Gatlin, Rupe's neighbor, testified that Parker and his wife came to his home on the day of the incident and that Parker's wife, Tammy, stayed at his residence while Parker walked across the road to Rupe's house to repossess a truck. Gatlin said that after a fewminutes, he heard the truck start, someone yell, and the truck run into something several times. Gatlin stated that as Rupe drove away, his face "showed anger and intensity and he was wild eyed." At that point, Rupe drove the truck in the road and screamed profane words "of what he had done to `that one.'" After Rupe had driven away, Gatlin ran to the rear of Rupe's property and found Parker lying on the ground, unable to move. Gatlin and his wife then called an ambulance.

Candy Gatlin, John Gatlin's wife, testified that she is a registered nurse and that when she saw Parker lying on the ground, his knees appeared swollen and he had lacerations on his arm with blood flowing down that arm. She said that when she arrived, Parker told her that Rupe had run over him.

Tammy Parker also testified. She said that she and her husband drove to Gatlin's residence, spoke with Gatlin, and parked their truck on the road in front of Gatlin's property. She stated that her husband walked across the street to Rupe's house. After a short time, she heard screaming, the engine to the truck start, and begin "revving." She said that Rupe then drove away, screaming profanities of what he had done to "that one" and what he would do to the next one. She found her husband at the rear of the property, behind the Rupe house, lying in mud, crippled up in great pain. She stated that after the incident he used an orthopedic bed for three and one half months and was on crutches an additional five weeks.

She stated that she owns a repossession business that she operates from their home and that they had repossessed approximately ten vehicles in the two years that she had owned the business. She said that because she and Parker had "notice" of Rupe's behavior,her husband thought that she should wait at the Gatlin residence. She conceded that Parker did not repossess the property in the proper manner, but she stated that she and her husband had the right to be there in order to repossess the truck. She stated that she understood that if the owner says no, the repossessor must walk away without the property.

After the State rested, Rupe moved for a directed verdict, contending that he acted in self-defense. The court responded that it might instruct the jury on self defense but that it would not direct a verdict for Rupe.

Rupe then testified that before the incident Parker had talked with him about an insurance problem with the pickup truck and that because of that conversation, Rupe changed the insurance carrier. He then stated that on that night before the incident, Parker came onto his property and looked into his mother's bedroom window. Rupe maintained that Parker did the same thing on the day of the incident. Rupe stated that when Parker approached him, he asked Parker what he wanted and that Parker responded that he intended to take the truck. Rupe said that he offered Parker the extra set of keys and stated that he needed to retrieve his personal belongings from the truck. Rupe said that because Parker made derogatory remarks about his mother's illness the two got into an altercation. Rupe maintained that Parker then reached into the bed of the truck and retrieved the hoe and swung it at Rupe, missing him. He said that the two of them struggled over the hoe and that during the altercation, he felt his knee give way and he tore all of the ligaments in his hand and shoulders. He said that he got up from the ground and into the cab of the truck, locking the doors. Rupe testified that Parker was beating on the glass, making obscene statements,and that Parker "eventually presented himself on the hood." Rupe stated that he drove fast, slamming Parker forward in an effort to get Parker off the hood. He said he backed the truck up, drove forward, and asked Parker if he was willing to leave his property. Rupe stated that Parker appeared hurt and yelled for Rupe to call the sheriff. Rupe stated that he checked on his mother, then locked the doors, and drove to the Gatlins' residence. Then, Rupe maintains, he told John Gatlin and Tammy Parker to call the sheriff. He then drove away. He said that he did not intend to harm Parker and that he had asked Parker to leave but that Parker had refused.

He explained the acceleration marks by stating that he had used the truck to drag three light poles through the lot on an earlier occasion. He stated, "And, I do not believe that there is any person in the Country that could be run over, front and behind, by a full-sized Extended Cab Silverado pickup truck, for three or four times, and come out with some screws knocked out of his leg and a broken arm. I do not know what happened to this man." Rupe stated that as he drove away, Parker was crawling around on the ground and "wanted the truck, wanted me to call the sheriff and wanted me to get him some help also." He stated that Parker had a gun and that he considered Parker dangerous. He also conceded that he left his mother with a dangerous man because Parker was incapacitated. He stated that he had paid a $7,000 to $9,000 down payment on the truck and had intended to take care of his problems at the bank.

The jury convicted him, and he brings this appeal. He contends that the court had an obligation to sua sponte give a jury instruction on the issue of self-defense because there wasevidence presented to support the defense, that the court erred in not ordering a mistrial because improper evidence was admitted, and that there was insufficient evidence to convict him because Parker was illegally trespassing.

For his last point on appeal, he argues that there was insufficient evidence to convict him. However, because of our consideration of prohibitions against double jeopardy, we review the sufficiency of the evidence prior to examining trial error. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 315 (2000). In determining the sufficiency question, we disregard any alleged trial error. Id.

Rupe argues that Parker was trespassing and that he was insistent on taking possession of the truck, notwithstanding that the official ownership documents showed Rupe as the owner. He states that the testimony showed that Parker did not see the truck before he entered onto the property, that Parker trespassed, that Parker was free and clear to walk away, and that the court should not have allowed Parker's violations of the law to be "atoned" by Parker's uncorroborated testimony that he had heard from law enforcement that Rupe was a dangerous man. Rupe asks this court to grant a new trial in which the court should instruct the jury on Rupe's right to self defense, to curtail witnesses, "especially those for the Prosecution, from repeatedly injecting their own innuendos and reports from rumors, regarding any alleged dangerous demeanor of this appeal, into their respective testimonies," and to implement all measures in order for Rupe to receive a fair trial.

A person commits battery in the first degree if with the purpose of causing serious physical injury to another, he causes serious physical injury to another person by means ofa deadly weapon. See Ark. Code Ann. § 5-2-201(1) (Repl. 1997). A motion for directed verdict is a challenge to the sufficiency of the evidence. Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or another. Id. In a challenge to the sufficiency of the evidence, the appellate court reviews the evidence in the light most favorable to the State and sustains a judgment of conviction if there is substantial evidence to support it. Id.

Parker testified that Rupe ran over him with his truck several times. The Gatlins testified that they heard "hollering" and heard the truck start and stop as if it was running into something. They also testified that Rupe drove away screaming profanities and stating that he got "that one." In addition, the Gatlins and Tammy Parker testified that they found Parker behind Rupe's house "crippled up" with swollen knees and a lacerated arm. Parker could not walk and appeared in great pain. That testimony constitutes sufficient evidence to convict Rupe of battery in the first degree.

Rupe also maintains that the court erred in not instructing the jury, sua sponte, that he was acting in self defense. He argues that the court should have given the instruction because the evidence raised the possibility that he acted in self defense. At trial, he moved for a directed verdict stating that Rupe should be acquitted because he acted in self defense. In addition, he argues that the instruction should have been given because during his cross-examination, he misstated the law on self defense and that a jury instruction could havecured his misstatement.

However, the abstract does not reflect that Rupe asked for an instruction on self defense. In addition, it does not appear that he objected to the jury instructions. A defendant requesting a jury instruction must prepare and submit to the court a correct instruction, and where he fails to do so, he is in no position to argue on appeal that the request should have been given. Wood v. State, 20 Ark. App. 61, 724 S.W.2d 183 (1987). In this case, the abstract reflects that Rupe neither asked for nor proffered an instruction on self defense.

Rupe also argues that a mistrial should have been granted or his sentence reduced because improper evidence was introduced. Trial judges have wide latitude of discretion in granting or denying a motion for mistrial. McIntosh v. State, 340 Ark. 34, 8 S.W.3d 506 (2000). We will not reverse the trial court's decision absent an abuse of that discretion or manifest prejudice to the complaining party. Id. A motion for a mistrial must be made at the time objectionable matter is brought to the jury's attention. Kidd v. State, 330 Ark. 479, 955 S.W.2d 505 (1997).

Rupe argues that evidence of other wrongful conduct is not admissible. However, he does not specifically state what evidence should have been excluded. In addition, as the State points out, the abstract reflects that his motion for a mistrial was not timely made because it was made after the case was submitted to the jury and in that motion, Rupe failed to state what evidence he found objectionable. While it is true that he objected to Parker's testimony that the police had told him that Rupe was a pretty dangerous person, he did so on the basis that the testimony was conjecture, and at no point did he move for a mistrial.

Affirmed.

Jennings and Griffen, JJ., agree.