NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION IV

CACR00-1301

OCTOBER 17, 2001

TOMMY PAUL LEMONS AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT v. [CR2000-714]

STATE OF ARKANSAS HON. JOHN LANGSTON,

APPELLEE CIRCUIT JUDGE

AFFIRMED

Pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, the appellant's present counsel has filed a motion to withdraw on the grounds that the appeal is without merit. Appellant was furnished a copy of his counsel's brief and was given the opportunity to file pro se points for reversal. However, appellant has not filed said points.

Counsel's motion was accompanied by a brief referring to everything in the record that might arguably support an appeal, together with an explanation of objections made by appellant and ruled on by the trial court, a record of motions and requests made by appellant and denied by the court, and a statement of reasons as to why counsel considers there to be nothing in the record that will support an appeal.

In the notice of appeal, counsel for appellant designated "the entire trial record, including any audio and visual records, but excluding voir dire and opening and closing arguments, except for objections during same, as [the] record of appeal in this case." Pursuant to our recent decision in Campbell v. State, 74 Ark. App. 277, 47 S.W.3d 915 (2001), we must conduct "a full examination of all proceedings to decide whether the case is wholly frivolous" as required by Anders. Realizing the error, on September 10, 2001, counsel for appellant filed a motion to supplement the record on appeal to comply with our holding in Campbell. Accompanying the motion was a properly certified copy of the voir dire, guilt-innocence phase opening and closing arguments to the jury and penalty phase opening and closing arguments to the jury. Counsel also insisted that since all rulings adverse to appellant were included in the initial record on appeal, including those found in the voir dire and opening and closing arguments to the jury, there was no need for him to file a supplemental "no-merit" brief that addresses any objections contained in those parts of the record. We agree.

Appellant was arrested for the robbery of a Shell Super-Stop store on or about December 25, 1999. On July 11, 2000, appellant was found guilty of robbery and theft of property with a value $500 or less. He was sentenced to fourteen years on the robbery count, one year in jail on the theft of property count, and fined $57. The jail sentence was concurrent to appellant's sentence of imprisonment.

We will begin with the sufficiency of the evidence argument. At the close of the State's case, appellant's counsel moved for a directed verdict on both the aggravated robberyand the theft of property charges, alleging that witness Tameka Knowlton acknowledged that appellant did not employ or threaten to employ immediate physical force upon her and alleging that the State failed to prove whether the cash that appellant allegedly took from Tameka Knowlton was her property or the property of the Shell Super-Stop. The court denied the motions. Counsel renewed those motions at the close of the evidence, and again those motions were denied.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. Rutledge v. State, 345 Ark. 243, 45 S.W.3d 825 (2001); see also Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Evidence is sufficient to support a conviction if the trier of fact can reach a conclusion without having to resort to speculation or conjecture and is sufficient to compel a conclusion one way or the other. Ethyl Corp. v. Johnson, 345 Ark.476, 49 S.W.3d 644 (2001). It is not the appellate court's place to try issues of fact; rather, the court simply reviews the record for substantial evidence to support the jury's verdict. Ethyl Corp., supra. If there is substantial evidence supporting the conviction, it must be affirmed on appeal. Ward v. State, 64 Ark. App. 120, 981 S.W.2d 96 (1998).

A person commits the offense of 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 (1987). A person commits aggravated robbery if he commits robbery as defined in Ark.Code Ann. § 5-12-103 (1987) and he is (1) armed with a deadly weapon or represents by word or conduct that he is so armed or (2) inflicts or attempts to inflict death or serious physical injury upon another person. Where no verbal representation is made and only conduct is in evidence, the focus is on what the victim perceived concerning a deadly weapon. Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990).

There is substantial evidence to support appellant's convictions for robbery and theft of property. Tameka Knowlton testified on direct examination that on the morning of December 25, 1999, she was working as a clerk at the Shell Super-Stop at Interstate-30 and Baseline Road when appellant entered the store, and with his hand under his shirt, said, "This is a robbery." She testified further that thinking appellant had a gun, she gave him the money in the register. On cross-examination, Knowlton testified that appellant neither threatened to harm her nor threatened to employ any physical force upon her. She also testified that she remembered telling the police officer that "he was pointing his finger." However, resolution of conflicts in testimony and assessment of the credibility of witnesses is for the fact-finder. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). Here, there is no question appellant made representation by conduct of being armed with a deadly weapon. That was sufficient to satisfy the statutory requirement.

The trial correct did not err in denying appellant's motion for directed verdict with regards to the theft of property charge either. In his motion, appellant opined that because the State failed to prove to whom the money that appellant took belonged, his motion for directed verdict should have been granted. However, "property of another person" is definedas "any property in which any person . . . has a possessory or proprietary interest. . . ." Ark. Code Ann. § 5-36-101(7) (1987). It is wholly immaterial who owns the stolen property if, at the time it is taken, it is in the possession and under the control of another person who is alleged to be the owner. Jackson v. State, 37 Ark. 160, 826 S.W.2d 307 (1992).

The trial court denied appellant's pre-trial motion. Appellant was convicted of robbing a Shell Super-Stop store on or about December 25, 1999. Prior to trial, appellant was held in custody because he could not post bail. On April 5, 2000, appellant's counsel filed a motion in circuit court requesting appellant be released on his own recognizance. Counsel's motion was based on Ark. R. Crim. P. 8.6, which in pertinent part, requires that the State file an information within sixty days of the appellant's arrest. Failure of the State to comply with this filing requirement results in a defendant's release from custody, unless the State establishes good cause.

On April 10, 2000, the court held an omnibus hearing in connection with appellant's motion. The deputy prosecuting attorney explained that the appellant had been in custody a total of seventy-four days before the information was filed. He further explained that while the felony information was printed on February 3, 2000, due to clerical error, it was not filed until March 8, 2000. The State submitted that the motion under Rule 8.6 has to be filed in a timely manner, and that means once the felony information is filed, the issue is moot. The defense argued that the issue was not moot as the circuit court had exclusive jurisdiction over the felony charge. The defense also argued that the State failed to show good cause as to why the information was not filed within the sixty-day period. The court subsequentlydenied appellant's motion.

The circuit court's denial of this motion, even if erroneous, does not provide a basis for reversal of appellant's conviction. A circuit court's erroneous denial of a defendant's request for release from pre-trial incarceration does not provide a basis to reverse an otherwise valid conviction. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986).

The next adverse ruling was the trial court's denial of appellant's pro se pre-trial motion requesting dismissal of the charges against him because of the State's failure to comply with the sixty-day filing requirement of Rule 8.6 and because there had been a delay in his arraignment. On June 20, 2000, appellant stood trial in the Pulaski County Circuit Court on the felony and misdemeanor charges. Appellant was tried by a jury. Prior to the beginning of trial, counsel for the parties presented argument on the matter. Defense counsel did not adopt any motion filed by the appellant. The matter was addressed because appellant wanted it to be addressed by the court. The court found the motion insufficient on its face and denied the motion. The trial court did not err in denying appellant's motion. Even if the court erroneously denied a request for relief from pre-trial custody, it does not provide a basis for reversal of a subsequent conviction, if otherwise valid. Jackson, supra. Moreover, a delay in an arraignment does not provide a basis for dismissal of charges pending against a defendant. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981).

The trial court's denial of defense counsel's request to cross-examine witness Tameka Knowlton about her discharge from Shell Super-Stop for the theft of customers' credit card numbers is the next adverse ruling against appellant. Prior to trial, defense counselrequested that he be permitted to cross-examine State witness Tameka Knowlton about the discharge and the circumstances arising therefrom. According to defense counsel, pursuant to Ark. R. Evid. 608(b), he should have been allowed to cross-examine Knowlton on this point for the purpose of attacking her credibility by proving that she had the character trait of untruthfulness. There were criminal charges pending against her and the State moved in limine to prohibit defense counsel from cross-examining Knowlton on the existence of these charges and on the basis of these charges. The circuit court denied defense counsel's request that he be permitted to cross-examine her on this point on the basis that the rule does not allow questions as to specific acts to show credibility.

Later, the trial judge went off record for some time and then requested all counsel and the defendant to join him in his chambers outside the presence of the jury. The court was still considering the questions defense counsel wanted to ask with regards to the credit card incident. The court later determined defense counsel could generally ask Knowlton if she had ever forged credit card signatures, but the court would not allow any further inquiry.

Arkansas Rule of Evidence 608(b) (2001) provides, in pertinent part, that "specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime . . . may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. . . ." See also Laughlin v. State, 316 Ark. 489, 872 S.W.2d 848 (1994); Green v. State, 59 Ark. App. 1, 953 S.W.2d 60 (1997).

The court did not err in denying appellant's request because a witness's specific instance of conduct that amounts to commission of theft, while probative of the character trait of dishonesty, is not probative of the character trait of truthfulness. Laughlin, supra; see Watkins v. State, 320 Ark. 163, 895 S.W.2d 532 (1995). The court, after reviewing its initial finding, went in camera so as to allow defendant to plead his case on asking a particular line of questioning. The court allowed appellant's counsel to ask a general question of the witness that went to her truthfulness. Because of this, the court did not err.

The final adverse ruling against appellant came during the State's closing argument when the prosecuting attorney stated, "He [appellant] fled in a car that didn't belong to him." Counsel for appellant objected asserting that the prosecutor drew an inference that appellant fled from the police. The trial court overruled the objection finding that the prosecutor neither stated appellant fled from the police nor was such an inference raised. Witnesses, Tameka Knowlton, Isaiah Jones, and Tim Wheeler, testified appellant left the scene in Jones's daughter's vehicle after he robbed the store. Where an attorney's comment during closing arguments is directly reflecting or inferable from testimony at trial, there is no error. Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993).

The record has been reviewed in accordance with Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals. We conclude that there were no errors with respect to rulings adverse to the appellant and that this appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the judgment of conviction is affirmed.

Pittman and Vaught, JJ., agree.