ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

STEPHEN RAY SHARP

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-545

November 14, 2001

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

CR-2000-233

HON. JOE MICHAEL FITZHUGH, JUDGE

AFFIRMED

Appellant was convicted by a Sebastian County jury of domestic battery in the third degree, kidnapping, residential burglary, and assault in the third degree. He was sentenced to serve a total of 180 months in the Arkansas Department of Correction for all offenses. Appellant raises five issues on appeal. We affirm.

The facts of the incidents leading to appellant's conviction were described at trial by the victim, Karen Ibison. She testified that after she married appellant on April 9, 1999, they had trouble with domestic violence, and later separated. On or about February 20, 2000, Ms. Ibison was awakened around 12:30 a.m. by a noise outside her home. Ms. Ibison retrieved a gun from under her mattress, and noticed the door coming open. Appellant came into her house and took her gun away. She testified that appellant was mad about the divorce and dividing the property and that he intended to take her into the woods, have sex with her and kill her, before killing himself. She tried to calm appellant down with no avail; appellant hit her with his gun that he pulled out of his pants, threw her up against the fireplace, and kicked her, all in the presence of her son. Appellant then puta gun to her head and forced her to tie up her son. He then pulled her out of the house and told her to drive her car.

Trying to figure out how to stay alive, Ms. Ibison tried to convince appellant that they could work things out. The two drove to Missouri, and then to Oklahoma, and eventually ended up in Lubbock, Texas. They stopped several times along the way, including once so Ms. Ibison could clean off all the blood on her and once to buy clean clothes and pain pills for her injuries. While in Lubbock, the two had drinks at a motel bar. When appellant left her to go to the car to get cigarettes, Ms. Ibison told the bartender who she was and what had happened, and she asked the bartender to call her dad and tell him that appellant was going to shoot her and then kill himself. When appellant came back, they danced and had more drinks. A man later tapped appellant on the shoulder and arrested him. The officers told Ms. Ibison she was safe. Ms. Ibison showed an officer where the gun was and brought him to their motel room. She was taken to the police station for questioning and to the hospital to be examined.

Appellant first contends that the trial court erred in excusing jurors Nicholas Perkins and Cecil Greene for cause when they were the only black persons on the panel, in violation of applicable federal and state case law. In Rose v. State, 72 Ark. App. 175, 182, 35 S.W.3d 365, 368-69 (2000), we addressed the manner in which a defendant can make out a prima facie case under Batson v. Kentucky, 476 U.S. 79 (1986):

`The strike's opponent must present facts, at this initial step, to raise an inference of purposeful discrimination. According to the Batson decision, that is done by showing (1) that the strike's opponent is a member of an identifiable racial group, (2) that the strike is part of a jury-selection process or pattern designed to discriminate, and (3) that the strike was used to exclude jurors because of their race. In deciding whether a prima facie case has been made, the trial court should consider all relevant circumstances. Should the trial court determine that a prima facie case has been made, the inquiry proceeds to Step Two. However, if the determination by the trial court is to the contrary, that ends the inquiry.'

(quoting MacKintrush v. State, 334 Ark. 390, 398, 978 S.W.2d 293, 296 (1998)). We will reverse a trial court's ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Hinkston v. State, 340 Ark. 530, 10 S.W.3d 906 (2000). Also, we accord some measure of deference to the trial court in that it is in a superior position to make these determinations because it has the opportunity to observe the parties and determine their credibility. Id. Based on the United States Supreme Court's decision in Purkett v. Elem, 514 U.S. 765 (1995), the Arkansas Supreme Court has held that the State's explanation must be more than a mere denial of racial discrimination, but need not be persuasive or even plausible, and, indeed, may even be silly or superstitious. Hinkston, supra.

In the present case, there were only two African-Americans on the panel, Nicholas Perkins and Cecil Green. During voir dire, the prosecutor asked prospective jurors about domestic violence and whether a jury should be lenient on a defendant because of prior instances of abuse between the appellant and the victim. One juror, Mr. Spencer, indicated that the victim assumed the risk that this incident might occur due to the prior instances of domestic violence. The prosecutor then inquired if any other jurors felt the same way as Mr. Spencer and asked, "Does anybody believe that, that because there has been prior instances that you would be more lenient on punishment or she should have just left and we would not be here today?" Mr. Perkins responded, "I don't think you should be lenient, but I think that after a certain number of instances maybe she should have left." The prosecutor later asked if anyone else other than Mr. Perkins or Mr. Spencer believed that the victim assumed the risk for further instances of abuse, there were no further responses.

The prosecutor also asked the panel, "Why do you think women stay in relationships that are abusive, what are some of the reasons?" Mr. Greene stated, "I would say individuals sometimes stay in abusive situations because sometimes psychologically they enjoy it, sometimes they physicallyenjoy it." When asked how he would determine such a fact, he said it would be up to an expert to decide. The only other answer given by a member of the panel was simply for financial reasons.

At the conclusion of voir dire, the prosecutor asked to excuse Mr. Perkins. Appellant objected stating that the prosecution was excusing him based only on his race, that he could be one of the only African-American jurors on the panel, and that the prosecutor's office has a history of excusing African-American jurors. The prosecutor responded that his office had conducted a check on Mr. Perkins and found that he was convicted of having no liability insurance (first offense) in 1992 and that Mr. Perkins expressed that he would lessen punishment because the victim had been in an abusive relationship and should have left. The prosecutor also indicated that he intended to excuse the other juror who responded similarly, as well as Mr. Green who stated that some people stay in abusive relationships because they enjoy it.

Appellant offered no argument to rebut the prosecutor's explanation. The trial court then found that the prosecutor offered a non-discriminatory reason for Mr. Perkins's exclusion. In Hinkston, supra, where the supreme court upheld the exclusion of the only African-American member of the jury panel, the court stated, "If the strike's opponent chooses to present no additional argument or proof but simply to rely on the prima facie case presented, then the trial court has no alternative but to make its decision based on what has been presented to it, including an assessment of credibility." Id. at 540, 10 S.W.3d at 913 (quoting MacKintrush v. State, 334 Ark. at 399, 978 S.W.2d at 297). The prosecutor gave a non-discriminatory reason for excusing Mr. Perkins and also excused Mr. Spencer, who also opined that the victim assumed some of the risk because of the prior instances of abuse. Based on these facts, we cannot say that the trial court's decision is clearly against the preponderance of the evidence.

The State also excused Mr. Greene, and appellant objected on the same basis as Mr. Perkins- that Mr. Greene is one of two African-American members of the panel that the prosecution is trying to systematically exclude based solely on their race. The prosecution responded that it was excusing Mr. Greene based on his response that women stay in abusive relationships because they may like it, psychologically or physically. It further stated that the appellant's main defense was that the victim liked the abuse and that goes to the heart of the defense. Appellant responded that he did not have such a defense, but rather that Mr. Greene was an experienced college administrator who was being excused because he was African-American. The trial court concluded that the State gave a racially-neutral reason for his exclusion. Because the State gave a non-discriminatory reason to excuse Mr. Greene, we cannot say that the trial court's decision was clearly against the preponderance of the evidence.

Because we hold that the trial court did not err in allowing the prosecution to exclude jurors Perkins and Greene for cause, we need not address appellant's second argument that the trial court erred in denying appellant's motion to quash the panel and for a mistrial for the exclusion of those jurors from the panel.

For his third argument on appeal, appellant contends that the trial court erred in admitting, over his objections, the blood-stained gun into evidence. In the recent case of Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001), the supreme court stated that an objection to the admission of evidence based on an improper chain of custody needs to be made at the time the evidence is offered for admission, and that a chain-of-custody objection made after the evidence has been admitted is not timely.

In the present case, appellant objected prior to the testimony of Michael Nowicki, a forensic biologist with the Arkansas State Crime Lab, stating that it appeared as though the State was going to try to introduce blood evidence found on the gun. The objection was based on the fact that chainof custody of the bloody gun had not been established from the evidence locker to the crime lab. The trial court tentatively overruled the objection. Appellant again objected to the admission of the envelope in which the gun was sent during Nowicki's testimony, stating that there was no evidence as to who mailed the "item" from Fort Smith to Little Rock. The envelope was received over appellant's objection. Although appellant was objecting to the envelope, the gun had already been introduced and admitted into evidence without objection during the testimony of Detective Bill Bates of the Lubbock, Texas, Police Department. Because appellant failed to make a chain of custody objection at the time the gun was admitted into evidence, the chain of custody objection raised after the gun's admission was untimely. Guydon, supra. Therefore, we cannot address the merits of appellant's third argument.

Appellant's fourth argument consists of five-sentence objection to the State's use of a prior municipal court conviction of domestic battery to enhance his sentence for battery in the third degree as provided by Ark. Code Ann. § 5-26-305(b)(2) (Supp. 1999). He pled guilty to domestic battery in municipal court, and he argues that the municipal court judgment is defective because it does not mention his waiver of right to a jury trial, which is required to be in writing pursuant to Ark. R. Crim. P. 31.2. This argument lacks merit because an individual has no right to a jury trial in municipal court. See Ark. Code Ann. § 16-17-703 (Repl. 1999); Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999). Moreover, Ark. Code Ann. § 16-17-703 provides that in order for the right of trial by jury to remain inviolate, all appeals from judgments in municipal court shall be de novo to circuit court, and appellant acknowledged in the municipal court judgment that he was aware of his right to appeal his case to circuit court for trial and that his plea of guilty did not waive his right to appeal to circuit court for trial.

Appellant's final point on appeal is a two-sentence challenge to the sufficiency of theevidence on all four convictions. The State contends, and we agree, that appellant failed to preserve this argument for review by failing to make a specific motion at trial. According to the record, appellant moved for a directed verdict on all counts stating only "that the evidence is insufficient to take this case to the jury." A motion based on "lack of evidence" is not specific enough to preserve a sufficiency argument for appellate review. Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000). Rule 33.1(c) of the Arkansas Rules of Criminal Procedure states:

A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.

It has often been held that a directed-verdict motion requires a movant to apprise the trial court of the specific basis on which the motion is made. Bowen v. State, supra. Based on appellant's motion, it is clear that his claim of insufficient evidence is barred by his failure to state specific grounds for his directed-verdict motion.

Affirmed.

Hart and Baker, JJ., agree.