NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION III

BILL S. NORMAN

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1462

OCTOBER 3, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CR1999-681]

HONORABLE JOE MICHAEL FITZHUGH,

CIRCUIT JUDGE

AFFIRMED

Appellant, Bill Norman, was convicted of aggravated robbery and theft of property in the Sebastian County Circuit Court. At the conclusion of a jury trial, appellant was sentenced to twenty years' imprisonment for the aggravated robbery conviction and ten years' imprisonment for the theft of property conviction. Appellant has three points on appeal. First, appellant argues that the trial court erred in denying his motion for directed verdict because there was insufficient evidence to support a guilty verdict. Second, appellant argues the trial court erred in denying his motion to suppress. Third, appellant argues the trial court erred in denying his motion for a mistrial when the prosecutor improperly referred to the fact that the defendant did not testify. We affirm.

The victim, Ms. Brasuell, testified that she was leaving work around 9:00 p.m. on August 18, 1999. As she reached to close her car door, appellant appeared and demanded, "Your purse or your life." As he pointed a gun to her head, he forced her out of the car also snatching her purse from her

shoulder and her cell phone. Appellant drove off in Ms. Brasuell's car, which she testifiedshe purchased for $3,500 in 1998. Her account of the events that evening was not contradicted.

Detective Bates testified that Officer Hulsey was investigating a previous burglary where appellant was a suspect, and that he and Officer Hulsey interviewed appellant at his home about a cell-phone call made shortly after the robbery on August 18, 1999, from Ms. Brasuell's stolen phone to Ms. Evelyn Barr, who was considered a grandparent to appellant. Upon arrival, appellant went immediately over to Officer Hulsey and initiated discussion about an "offer" Hulsey had made to him in a previous burglary case. Officer Bates testified that he went inside to talk with appellant's step-father about the cell-phone call. The step-father confirmed that appellant made the call to see if he would pick up appellant from a location relatively close to Ms. Brasuell's work place. Detective Bates went back outside to talk with appellant, and after informing appellant that he was there to question him about the cell-phone call, appellant stated, "No, no, no, no, I gave a dime rock for that phone." Appellant then walked over to an S10 pickup and got the cell phone out of the truck. Officer Hulsey took the phone. He pushed pound recall, bringing up Ms. Brasuell's number and confirming that the phone belonged to her. Detective Bates then arrested appellant. Officer Hulsey's testimony confirmed Detective Bates's account of appellant's statement.

Following the State's presentation of its case, defense counsel moved for a directed verdict. The trial court denied both motions. The renewed motions were also denied.

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). Evidence, whether direct or circumstantial, is sufficient to support a conviction if it is forceful enough to compel reasonable minds to reach a conclusion one way or the other. Walker v. State, 330 Ark. 652, 955 S.W.2d 905 (1997). We do not, however, weigh the evidence presented at trial, as that is a matter for a factfinder. Id. Nor will we weigh thecredibility of the witnesses. Id.

The State contends that appellant's sufficiency argument is not preserved for our review because both motions for directed verdict were not sufficiently specific. We disagree. Arkansas Rule of Criminal Procedure 33.1(c) (2001) provides that:

Appellant's motions sufficiently specified that the evidence was insufficient for the theft of property charge because the State failed to prove a value of more than $2,500 and the evidence was insufficient for the aggravated robbery charge because the State failed to prove that a gun or firearm was used. These arguments are preserved for appellate review. 1

Where a defendant verbally represents that he is armed with a deadly weapon, that is sufficient to convict for aggravated robbery regardless of whether in fact he did have such a weapon. Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990). Where no verbal representation is made and only conduct is in evidence, the focus is on what the victim perceived concerning a deadly weapon. Id. Ms. Brasuell testified that appellant pointed a gun to her head and stated, "Your purse or your life" as he stole her car and her purse. Ms. Brasuell perceived appellant to be armed. Therefore, substantial evidence existed that appellant was armed with a deadly weapon on August 18, 1999.

Value is defined in relevant part in Ark. Code Ann. § 5-36-101(11)(A)(i) (Repl.1997), as "[t]he market value of the property or services at the time and place of the offense...." Ayers v. State,334 Ark. 258, 975 S.W.2d 88 (1998). The preferred method of establishing value is by expert testimony; however, value may be sufficiently established by circumstances that clearly show a value in excess of the statutory requirement. Id. 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. Id. Here, the owner testified that the stolen property was a 1994 Mitsubishi Mirage, which she had purchased in 1998 for $3,500. After she purchased the car, she put new tires on it and had driven the car approximately 10,000 miles. In her opinion, the car was worth close to the purchase price at the time it was stolen. From our review of the record, we conclude there is substantial evidence that the value of the 1994 Mitsubishi Mirage exceeded $2,500. The trial court did not err in denying appellant's directed verdict motion in view of the victim's testimony that a "gun" was pointed at her head when appellant stole her car which she valued at approximately $3,500.

Appellant's second point on appeal is that the trial court erred in denying his motion to suppress. Specifically, appellant argues that his right to counsel was violated when the police initiated contact with him in connection with the present charge while he was represented by counsel in an unrelated robbery investigation. In reviewing a trial judge's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances and reverse only if the ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987). The facts and evidence are reviewed in the light most favorable to the State. Muhammad v. State, 337 Ark. 291, 988 S.W.2d 17 (1999). The appellate courts will reverse only if the decision to deny the motion to suppress was clearly against the preponderance of the evidence. Id.

Appellant was represented by counsel in another burglary investigation. That investigationinvolved stolen property that the police were trying to recover. Officer Hulsey, the detective investigating the other burglary, accompanied Detective Bates to interview appellant at his residence. While Officer Bates was inside appellant's residence talking with appellant's uncle, Officer Hulsey told appellant that the offer was "still good" in the previous burglary case. Appellant asserts that since the offer was discussed while the officers were there to question him about the instant case, he was tricked into believing the offer applied to this case and his statements should have been suppressed. Appellant seems to argue a Sixth Amendment right to counsel violation, citing Milton v. State, 54 Ark. App. 96, 924 S.W. 2d 465 (1996), for the proposition that police may not initiate contact after a criminal defendant expresses a desire to deal with the police only through counsel. However, appellant concedes that Milton dealt with police-initiated contact in the same case. Although appellant argues that holding in Milton should be extended to the situation presented in this case, he cites no convincing argument or authority for this proposition. Appellant's failure to cite authority or make a convincing argument is sufficient reason to affirm the trial court's ruling on this point. Williams v. State, 329 Ark. 8, 946 S.W.2d 678 (1997). We decline to extend the holding in Milton and find that the trial court did not err in denying appellant's motion to suppress.

Appellant's third point on appeal is that the trial court erred in denying his motion for a mistrial. Appellant argues that the prosecutor improperly referred to the fact that appellant did not testify on his own behalf. A mistrial is a drastic remedy, to be employed only when an error is so prejudicial that justice cannot be served by continuing the trial and when it cannot be cured by an instruction. Jones v. State, 340 Ark. 390, 10 S.W.3d 449 (2000) (citing Gates v. State, 338 Ark. 530, 21 S.W.3d 40 (1999)). The decision to grant a mistrial is within the sound discretion of the trial court, and will not be overturned absent a showing of abuse or upon manifest prejudice to the complainingparty. Id. In reviewing a prosecutor's comment during closing arguments, the appellate court first determines whether the comment itself is an improper comment on the defendant's failure to testify. Id. Should we determine that the prosecutor's closing argument statement did indeed refer to [the defendant's] choice not to testify, we would then determine whether it can be shown beyond a reasonable doubt that the error did not influence the verdict. Id.

During closing argument, the prosecutor stated, "Now, you see if the defense answers the question. They get up here and you see if they answer the question of how do those fingerprints get here. I'm not talking about argument . . . I'm talking about the facts." At this point, the appellant moved for a mistrial arguing that the prosecutor was making reference to the fact that the defendant did not testify. However, we disagree that the prosecutor's statement referred to appellant's failure to testify. It is clear that the prosecutor's remarks merely referred to the extensive circumstantial evidence corroborating the victim's identification of the appellant as her assailant. Any unfair prejudice resulting from the prosecutor's remark was not so drastic as to warrant a mistrial, and we note that appellant did not request that the jury be admonished. See Burkhart v. State, 301 Ark. 543, 785 S.W.2d 460 (1990). We hold that the trial court did not abuse its discretion in denying appellant's request for mistrial.

Affirmed

Robbins and Roaf, JJ., agree.

1 Appellant also argues on appeal that the victim's testimony at trial did not match the actual description of appellant; however, this argument was not specified in his directed verdict motion and is not preserved for appellate review.