ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION III

JAMES CARTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1184

AUGUST 29, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

FOURTH DIVISION

[NO. CR 99-2219]

HONORABLE JOHN W. LANGSTON,

CIRCUIT JUDGE

AFFIRMED

Appellant James Carter was convicted by a jury of aggravated robbery and theft of property. He was sentenced to ten years in prison for aggravated robbery, fined $1500.00 for theft of property, and ordered to pay restitution of $2499.99. Mr. Carter now appeals, arguing that the trial court erred in failing to grant his motions for directed verdict. We affirm.

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 and pass beyond mere suspicion or

conjecture. Flowers v. State, 342 Ark. 45, 25 S.W.3d 422 (2000). On appeal, we view theevidence in the light most favorable to the State, considering only the evidence that supports the verdict. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000).

We first address the State's argument that Mr. Carter's challenges to the sufficiency of the evidence are not preserved for review because his abstract does not indicate that he renewed his motions for directed verdict at the close of the case. After the State filed its brief, Mr. Carter filed a motion to supplement the abstract, which we granted. The abstract has now been supplemented to show that Mr. Carter properly renewed his motions at the close of the case. Therefore, his sufficiency arguments are preserved and we will consider the merits of the case.

The victim, Randy Kirby, testified for the State at the jury trial. He stated that he lives in Pulaski County a short distance from Highway 10, about nine miles west of I-430, and is Steve Keifer's next-door neighbor. At about 4:00 a.m. on January 12, 1999, Mr. Kirby was awakened by Mr. Keifer's wife, who told him that someone had loaded his 1986 Honda four-wheeler into the back of a pickup truck and fled with it. Mr. Kirby testified that he did not give anyone permission to take his four-wheeler, and he estimated its value at $3000.00.

Mr. Keifer testified that he was awakened by his barking dogs, and looked out his window and saw two men pushing Mr. Kirby's four-wheeler toward a pickup truck. By the time he stepped outside of his house, the truck was gone. Mr. Keifer then armed himself with a pistol, got in his van, and proceeded east on Highway 10 in hopes of locating the perpetrators.

After passing three cars Mr. Keifer came upon a pickup truck with a four-wheeler in the bed, and he gave chase. The truck was moving at a high rate of speed and Mr. Keifer chased it north on I-430, then west on I-40. The truck made a turn across the median and proceeded east on I-40. Mr. Keifer continued his pursuit, and during this time a white car had joined the chase and was getting between Mr. Keifer's van and the truck in an apparent attempt to shield Mr. Keifer from the license plate. The truck turned around again, and eventually exited at Morgan and led Mr. Keifer down a country road with no shoulder. About a half mile down the road, the truck stopped abruptly, Mr. Keifer stopped a few feet behind the truck, and the white car stopped behind him. At that time Mr. Keifer recognized that the four-wheeler belonged to Mr. Kirby. At some point during the chase, Mr. Keifer was close enough to the truck to write down the license plate number.

After the three vehicles stopped, Mr. Keifer saw the two doors of the white car open, and the passenger door of the truck open. A man jumped out of the truck wearing a black ski mask and approached Mr. Keifer's van with a large knife. According to Mr. Keifer, the man then ducked down in front of the van, stood up near the passenger door, and was approaching the door with the knife. Mr. Keifer stated that the doors to his van were unlocked, and he thought "he was coming after me." Mr. Keifer then closed his eyes and fired a shot through the right, lower corner of his windshield.

When Mr. Keifer opened his eyes, the man was stumbling and running back to the truck. At this time the white car was gone, and the truck pulled away. Mr. Keifer stepped out of his truck because his ears were ringing and he needed fresh air after the events thathad transpired. Mr. Keifer then saw the truck's reverse lights illuminate, and he fired two shots in the air. The truck left the scene, and Mr. Keifer drove to a convenience store to call the police. When he got to the store, he discovered that one of his tires had been slashed and was flat. Photographs of the truck were introduced into evidence and identified by Mr. Keifer.

Officer Stanley Johnston responded to a call from Mr. Kirby on the morning at issue. He then made contact with Mr. Keifer at the convenience store, where he received a vehicle description and license plate number of the truck. Based on this information, the truck was found at an apartment complex in Maumelle.

Dr. Frank Ma testified that he was working as an emergency physician at Baptist Medical Center on January 12, 1999, when Mr. Carter came in for treatment. According to Dr. Ma, he received a call about someone being shot in the head, and upon examining Mr. Carter he found a wound to the back, left side of his head. Some bullet fragments were found that had caused a small hole and a small dent in the skull. Mr. Carter was treated and admitted to the hospital for observation.

Detective Jeff Scott investigated the case. He testified that, when the pickup truck was found in Maumelle, a black ski mask and knife were found on the floorboard. On January 13, 1999, Detective Scott made contact with Mr. Carter at the hospital and transported him to the police station. During the ride to the station, Mr. Carter asked why he was being arrested and Detective Scott told him that he knew what this was about. According to Detective Scott, Mr. Carter then asked if this was about the four-wheeler,stated that he knew he was in a lot of trouble, and stated that he needed to get things straightened out and try to help get the four-wheeler back to the owner. Officer Tim Hibbs was also in the patrol car during this conversation, and he corroborated Detective Scott's testimony that Mr. Carter talked about the four-wheeler and acknowledged being in trouble.

Darrell McCullough, a friend of Mr. Carter, testified that the pickup truck found parked in Maumelle belonged to him. He stated that in the early morning hours of January 12, 1999, he had been drinking with friends at his house when he was about to go to bed. Before he went to bed, a man named Richard, whom he knew through Mr. Carter, came to his room and asked how he was doing. Mr. McCullough told the man to show himself out, and when he later awoke he saw that Richard's truck was still there but that his was missing. Mr. McCullough stated that, "on his way out I guess he got my keys and took my truck."

Later that day, Mr. McCullough received a call from Mr. Carter, who told him he had been shot and apologized for "bringing him into this." Mr. Carter told him where he could get his truck in Maumelle. Mr. McCullough testified that he was not positive that Mr. Carter was in his truck that morning. However, when he talked to the police shortly after the incident he told them that Mr. Carter had his truck. He explained in his testimony that this representation to the police was just a guess.

Terry Rolfe, a forensic biologist at the Arkansas Crime Lab, testified that he compared a blood sample taken from the ski mask to a blood sample taken from Mr. Carter. His tests revealed that the DNA extracted from the mask was consistent with the DNA extracted from Mr. Carter's blood sample. He used two different statistical formulas inarriving at probabilities that the DNA on the mask would match the DNA of a randomly selected Caucasian. Depending on the formula, he estimated the probability at either one in 7,000 or one in 12,000.

For reversal of his aggravated robbery and theft convictions, Mr. Carter first argues that there was insufficient evidence that he was the individual who exited the truck and approached Mr. Keifer with a knife on the morning of the confrontation. He notes that Mr. Keifer never saw the individual's face and thus could not identify him at trial. He further points out that his fingerprints were not found on the knife, and submits that the statements he made to the police did not suggest that he was involved in the alleged crimes. As for the DNA testing, even the forensic biologist admitted that he could not be certain that the blood on the ski mask was that of the appellant. Mr. Carter argues that there was no direct evidence identifying him as the culprit, and further argues that the circumstantial evidence was insufficient to support the verdict.

Mr. Carter is correct in asserting that the evidence establishing identification was circumstantial. However, circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999). In the instant case, the circumstantial evidence amounted to substantial evidence to support the conclusion that Mr. Carter was the same person who wore the mask and brandished the knife on the morning at issue.

Contrary to Mr. Carter's argument, his statements to the police were highly probative of his guilt. He not only acknowledged that his arrest was related to the four-wheeler, but further admitted that he knew he was in a lot of trouble and wanted to help get the four-wheeler back to its rightful owner. Mr. McCullough testified that, on the day that his truck was taken without permission, Mr. Carter called and told him he had been shot and directed him to the location of the truck. Also significant is the fact that Mr. Carter presented to the emergency room with a gunshot wound to his head, and the blood on the mask was consistent with his blood. While the DNA testing was not absolute, it showed that a random blood sample would have only a one in several thousand chance of matching. The DNA evidence, when considered along with the other incriminating evidence, was consistent with Mr. Carter's guilt and excluded every other reasonable hypothesis.

Mr. Carter next argues that, even if he was the person who punctured Mr. Keifer's tire and turned and was shot in the head, there was no evidence that he threatened any force against Mr. Keifer, much less deadly force. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997). If during the robbery the person is armed with a deadly weapon, he commits aggravated robbery. See Ark. Code Ann. § 5-12-103(a) (Repl. 1997). While apparently conceding that a knife is a deadly weapon, Mr. Carter argues that he used the weapon only to disable Mr. Keifer's vehicle and that he did not threaten anyphysical force. Therefore, he contends, he was guilty of at most theft of property and not robbery or aggravated robbery.

Mr. Carter's argument that there was no evidence of any threat is unavailing. The evidence showed that after cutting the tire, Mr. Carter approached the passenger door with the knife drawn causing Mr. Keifer to "[think] he was coming after me." Mr. Keifer's testimony supported the jury's finding that Mr. Carter threatened to immediately employ physical force against him while armed with a deadly weapon.

Mr. Carter also argues that his conviction for aggravated robbery should be reversed because the evidence did not establish that Mr. Keifer was attempting to apprehend him, so he would not have been resisting apprehension. Rather, he argues, Mr. Keifer was only trying to get his license plate number. Further, Mr. Carter asserts that he was not resisting apprehension as defined by the robbery statute because Mr. Keifer had no legal right to apprehend him, even if apprehension was being attempted.

We first note that Mr. Carter has presented no convincing argument or authority for his contention that, to be convicted of robbery, the element of "resisting apprehension" must be against a police officer or someone authorized to make an arrest. A plain reading of the statute leads to the conclusion that one must only resist apprehension, and not necessarily arrest, so resisting the efforts of a civilian, as in this case, satisfies that element of the statute. Beyond that issue, there was substantial evidence that Mr. Carter was resisting apprehension because, even if Mr. Keifer was not attempting to apprehend him at that particular time, he was at least attempting, by Mr. Carter's own admission, to secure information that wouldlead to Mr. Carter's apprehension. The jury could reasonably conclude from the evidence that Mr. Carter threatened force with the knife in an immediate attempt to resist his apprehension.

Mr. Carter's remaining argument is that, given the lapse of time and events that occurred between the theft and roadside confrontation, there was insufficient evidence that he resisted apprehension "immediately" after the theft. However, we disagree.

In robbery cases, "immediate" has been defined as "a reasonable time in view of particular facts and circumstances of the case under consideration." Lowe v. State, 36 Ark. App. 85, 819 S.W.2d 23 (1991); Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989). In Lowe v. State, supra, we held that there was sufficient evidence to establish an immediate deadly threat when the theft, fight, struggle, and apprehension were accomplished in a matter of minutes without any significant intervening event.

We hold that, under the particular facts of this case, Mr. Carter used "immediate" force in resisting apprehension. Mr. Keifer pursued and caught up with the truck carrying the four-wheeler within minutes, and although a lengthy chase ensued, this was in the context of a continuous course of related events without any significant intervening events, and was at the election of appellant's accomplice who was driving the truck. Thus, there was substantial evidence to support every element of the aggravated robbery statute.

Although Mr. Carter also argues that his constitutional right to Due Process has been violated in light of previous appellate rulings about theft being a continuous crime, he failed to raise this argument below, and even constitutional arguments can be waived when theyare not argued below. See Jordan v. State, 327 Ark. 117, 939 S.W.2d 255 (1997). Moreover, our disposition of this case does not rely on the theft being continuous and perpetual, but rather on the fact that Mr. Carter resisted apprehension immediately after the theft was committed.

Affirmed.

Griffen and Crabtree, JJ., agree.