NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

SAM BIRD, JUDGE

DIVISION I

DONALD SAIN and WILLIAM SARNO,

APPELLANTS

V.

STATE OF ARKANSAS,

APPELLEE

CACR00-634

MAY 16, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT,

NO. CR99-443B & CR99-443C,

HON. J. MICHAEL FITZHUGH,

JUDGE

AFFIRMED

Donald Sain and William Sarno, co-defendants, were tried before a jury in Sebastian County Circuit Court for the offenses of aggravated robbery and theft of property valued in excess of $2500. Each defendant was convicted of the offenses, and each received prison sentences of twenty years for robbery and six years for theft. Sarno raises three points of appeal: that the trial court erred in denying the motion for a directed verdict, that cumulative error occurred by actions of the prosecutor such that Sarno was denied a fair trial as required by the Due Process clause of the Fourteenth Amendment, and that the trial court erred in denying a motion for mistrial after an indirect reference to the fact that Sarno did not testify. Sain also raises three points, contending that the trial erred in allowing evidence of his robbery conviction as a juvenile during the sentencing phase of his trial for aggravated robbery, in not declaring a mistrial when the prosecution made a statement about a prior robbery conviction during the sentencing phase, and in denying a motion for mistrial after

an indirect reference to the fact that appellant did not testify. We find no error in points raised by either defendant, and we affirm.

We discuss the points in the order in which they are presented to us. However, we combine Sain's first two points into one discussion regarding error during the sentencing phase, and his third point is addressed with reference to identical arguments in Sarno's third point.

Whether the trial court erred in denying William Sarno's motion for a directed verdict

Sarno made motions for a directed verdict when the State completed its case and again when the defense rested. The grounds for his motions were that there was questionable testimony and a lack of direct evidence regarding the aggravated robbery, that the State failed to prove the value of the stolen car on the theft-of-property charge, and that the State failed to corroborate accomplice Pete Arreola's testimony.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). In reviewing the denial of a motion for a directed verdict, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and affirm if there is substantial evidence to support the verdict. Id. Evidence, whether direct or circumstantial, is substantial if it is of sufficient force that it would compel a conclusion one way or the other without recourse to speculation and conjecture. Id. The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accusedwith its commission. Id. We defer questions of credibility and weight to be given the testimony to the superior position of the trial court. Kirby v. State, 52 Ark. App. 161, 915 S.W.2d 736 (1996).

Arkansas Code Annotated section 5-12-103 (1997) states that a person commits aggravated robbery if he commits robbery as defined in section 5-12-102, while armed with a deadly weapon or representing by word or conduct that he is so armed; or if he commits robbery and inflicts or attempts to inflict death or serious physical injury upon another person. Under section 5-12-102 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.

Evidence at trial included testimony by Angela Lower, a clerk at Kum and Go convenience store on Dodson Road; by Miranda Crossland, an acquaintance of the appellants; by Pete Arreola, an accomplice for the aggravated robbery, and by Mary Franklin, whose car was stolen. Lower testified that around 3:50 a.m. on May 5, 1999, two masked men with guns forced her to open the cash register, took money, fired a shot at her, hit her in the back of the head, and knocked her down onto her stomach. Crossland testified that in the early morning of May 5, while it was still dark, the appellants and Pete Arreola came to the apartment that she shared with Joe Arreola, who is Pete's cousin. She testified that Sain told her that he, Sarno, and Pete Arreola had robbed a convenience store of money and cigarettes; that she saw their money, guns, and two cartons of cigarettes; and that Sarno told her he had accidentally hit the woman. Franklin testified that her 1987 Toyota Camrywas stolen between 3:00 a.m. and 5:00 a.m on May 5. She stated that she had paid $4000 for it and that it had not been wrecked and nothing had gone wrong with it. She said that she estimated the value of the car as $3000.

Pete Arreola testified that on May 4 he "hooked up" with Sain and Sarno, that Arreola lent his gun to Sain, that they cleaned it, and that he and Sain purchased bullets for it at Wal-Mart. He said that he drove his car in the early morning hours of May 5 while the three men looked for a vehicle that was easy to steal, stopping at the Toyota Camry. Sain started it and they eventually all got in, with Arreola driving. He waited while the other men, carrying guns and wearing black shirts over their heads, went into the store. Sain used Arreola's gun. After the robbery Sain said that he had "messed up" because the gun went off and that he had hit the lady a little too hard. Arreola testified that the three men went to his cousin's place and split the stolen money, which totaled $150.

Lower's testimony established that the Kum and Go convenience store was robbed of money and cigarettes, that a gunshot was fired in her direction, and that one of the appellants hit her in the back of her head. Crossland testified that Sarno and Sain told her that they and Pete Arreola had robbed a convenience store of money and cigarettes, which she saw afterwards; that she also saw their guns; and that Sarno told her he had accidentally hit the lady over the head. Accomplice Pete Arreola testified that he loaned a gun to Sain, that they cleaned the gun and bought bullets for it, that they stole a Toyota Camry, that he drove appellants in the Camry to the Kum and Go, that appellants went inside with their faces covered, and that they went to his cousin's home and split the $150. Crossland'stestimony essentially corroborated Pete Arreola's testimony regarding the commission of the crime by the three men.

The purchase price paid by the owner is admissible as a factor for the jury to consider in determining market value, when it is not too remote in time and bears a reasonable relation to present value. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). Jurors are allowed to draw upon their common knowledge and experience in reaching a verdict from the facts proved, and direct proof of value is not required when the circumstances present substantial evidence indicating the value of property. Id. Franklin, the owner of the stolen Toyota Camry, testified that she had paid $4000 for it, that nothing major had gone wrong with it between the time she bought it in January 1998 and the time it was stolen in May 1999, and that she estimated its value at $3000. This was testimony sufficient to establish the value of the car as being more than $2500.

In addition to this value testimony, the jury had before it testimony establishing theft of property and aggravated robbery, and testimony connecting Sarno to those crimes. Thus, there was sufficient evidence to support his convictions.

Whether cumulative error occurred in Sarno's trial

At the close of the State's case, Sarno moved for a mistrial based upon the doctrine of cumulative error. A reversal of a conviction based upon cumulative error is appropriate only in "rare and egregious" cases. Noel v. State, 331 Ark. 79, 960 S.W.2d 439 (1998). This court will not recognize the doctrine of cumulative error where there are no errors to accumulate. Donavan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000).

In raising this point, Sarno specifically complains of six rulings by the trial court. The court sustained the State's objection that results of defense counsel's Internet research regarding the value of the Toyota Camry were not admissible evidence, and the court denied five objections made by the defense. Those objections were that a firearm was inadmissable evidence because it had not been linked to the crime, that Crossland's testimony that the defendants took money and two cartons of cigarettes was hearsay, that a bag of .22 caliber long-rifle shells was not relevant evidence, that certain questions by the prosecutor constituted comment on appellant's right not to testify and provided the basis for a mistrial, and that during the sentencing phase the introduction of his prior misdemeanor convictions was improper.

The State contends that Sarno's claim of cumulative error is barred because the allegations are not supported by argument or authority. We agree, for it is well settled that assignments of error unsupported by convincing argument or apposite authority will not be considered on appeal. Hale v. State, 343 Ark. 62, 31 S.W.3d 850 (2000). In Hale, the court declined to consider a cumulative-error argument on the basis of a "laundry list" of alleged trial court errors where none of the allegations were supported by argument or authority on appeal. This is what has occurred here. At any rate, from our analysis of the six alleged errors, they do not, either individually nor collectively, support Sarno's contention that there was reversible error.

Whether the trial court abused its discretion by denying Sarno's motion for mistrial based on an alleged violation of his right to remain silent

Sarno's motion for mistrial was made during the testimony of Detective Hammond that information from Jennifer Yarbrough and Miranda Crossland helped him locate the defendants. On appeal Sarno refers to the following exchange:

Sain objected and moved for a mistrial, arguing that the questions and answers referred to the detective talking to appellants and highlighted the fact that appellant was not going to testify, a violation of appellant's constitutional right not to testify. Sarno adopted the same objection. After the transcript of the testimony was read to the judge during a recess, the objection was denied.

The motion was denied, and court reconvened.

The State contends that this discourse concerned only the taking of the statement from Yarbrough and Crossland for help in locating Sain and Sarno, that it had nothing to do with the appellants choice not to testify, and that even if the pronouns initially used by the prosecutor could have confused the jury, the questions subsequent to the denial of the mistrial motion removed any doubt that Detective Hammond referred to taking the statements of the two women. We agree with the State. In Logan v. State, 299 Ark. 266, 773 S.W.2d 413 (1989), our supreme court applied Chapman v. California, 386 U.S. 18, 22 (1967), for the proposition that harmless error occurs when there is not a reasonable possibility that the remarks complained of on the part of the prosecuting attorney might have contributed to appellant's conviction. Such is the case here. It is obvious to us that the prosecuting attorney's reference to "them" as the persons from whom the detective took statements was a reference to the two women and not to Sain and Sarno. Furthermore, in theremote possibility that any member of the jury might have misunderstood and thought that "them" was a reference to the appellants, it was made clear by the questions that followed the objection that the prosecutor's question to the detective as to whom he took statements from was a reference to the two women and not to the appellants. Under these circumstances, we do not believe that there is a reasonable possibility that the prosecuting attorney's statement could have contributed to either of the appellants' convictions.

Whether the trial court erred in admitting evidence of Sain's juvenile robbery adjudication during the sentencing phase of his trial

Whether the trial court abused its discretion by allowing the prosecutor to make statements concerning Sain's robbery adjudication as a juvenile

After the jury found Sain guilty of aggravated robbery and theft of property, the trial proceeded to the sentencing phase. The court overruled an objection by Sain to the State's introduction of evidence that Sain had a prior robbery conviction as a juvenile. After the evidence was admitted, Sain moved for a mistrial after the prosecutor made the following remarks in closing argument of the sentencing phase:

Arkansas Code Annotated section 16-97-103(3)(i) (Supp. 1997) provides that evidence relevant to sentencing may include prior judicial determinations of delinquency in juvenile court, subject to the limitation that the relevant value of the prior juvenileadjudication outweigh its prejudicial value. A trial court has wide discretion in admitting evidence of other crimes or wrongs, and its decision will not be reversed absent an abuse of discretion. McClish v. State, 331 Ark. 295, 962 S.W.2d 332 (1998).

Sain contends that because of the similarity of the terms robbery and aggravated robbery, the jury could not be expected to distinguish them, making the prejudicial effect of the juvenile adjudication for robbery outweigh its probative value. The State relies upon Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993), where, even though the prosecutor misused the term "aggavated robbery" in the sentencing phase after the jury had found the appellant guilty of "robbery," we held that the jury could not have been mislead by the prosecutor's argument. Here, we find Sain's argument that the jury would confuse the terms to be speculative; thus, we do not find that any prejudice from the admission of the prior juvenile adjudication outweighed its relevance during the sentencing phase under Ark. Code Ann. § 16-97-103(3)(i), nor do we find that the trial court abused its discretion in admitting this evidence.

Regarding the prosecutor's closing remarks, we are presented with no convincing argument that the jury was mislead by these remarks. Some leeway must be given in opening and closing remarks and counsel are free to argue every plausible inference that can be drawn from the testimony. Lewis v. State, 41 Ark. App. 89, 848 S.W.2d 955 (1993). The State may argue for the maximum punishment in sensible language just as a defendant may argue for the minimum punishment. Id. Just as in admitting evidence of other crimes and wrongdoings, the trial court has a wide latitude of discretion in controlling the arguments ofcounsel, and its rulings in that regard are not overturned in the absence of clear abuse. Finally, mistrial is an extreme and drastic remedy and is proper only if the action on which it is predicated has infected the trial with so much prejudice to the defendant that justice cannot be served by a continuation of the trial. Id. Since the trial judge is in a superior position to assess the possibility of prejudice, he is vested with great discretion in acting on motions for mistrial, and this court will reverse only where that discretion is manifestly abused. No such abuse has been demonstrated in the present case.

Whether the trial court erred in denying a mistrial motion after an alleged indirect reference to the fact that Sain did not testify

As noted in our discussion of Sarno's appeal, Sain moved for a mistrial during Detective Hammond's testimony in the guilt phase of the trial. Hammond stated that in his efforts to locate Sain and Sarno, he located Jennifer Yarbrough and Miranda Crossland and got information from them to help locate "these folks." He answered affirmatively when asked if he had taken statements from "them" also. For the reasons stated in our discussion of this point with regard to Sarno, we find no reasonable possibility that the prosecutor's remarks might have contributed to Sain's conviction because it was clear that the prosecutor was referring to the two women, and not the appellants, when he inquired of the detective from whom he took statements.

We affirm these combined appeals on all points.

Affirmed.

Jennings and Griffen, JJ., agree.