DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR01-1284

June 19, 2002

CHARLIE BROWN AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR00-2710]

V. HON. JOHN PLEGGE, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Charlie Brown, Jr., was convicted of eighteen separate crimes arising from his participation in the abduction or attempted abduction of three women in Little Rock and North Little Rock in June 2000. He was convicted of eight counts of rape, three counts of aggravated robbery, two counts of kidnapping, two counts of theft of property, and one count each of attempted kidnapping, first-degree battery, and attempted theft of property. He now alleges the following errors: 1) the State failed to prove additional force beyond that used to effectuate the kidnapping and rape charges sufficient to prove aggravated robbery; 2) the State failed to prove theft of property because it failed to prove threats of serious bodily injury to the victims; 3) if the evidence was sufficient to sustain the theft of property charge, then his right to be free from double jeopardy was violated because the same proof of forcewas used to prove kidnapping, rape, and aggravated robbery; 4) collateral estoppel prevents his conviction for rape under Count 18 because the principal was found not guilty of the identical charge; 5) the State failed to prove the first-degree battery charge because the BB pistol recovered from his house does not fit the definition of firearm; and 6) the State failed to prove the first-degree battery charge because appellant did not shoot anyone. We find no merit in any of appellant's arguments and affirm.

There were three victims in this case: M.L., L.P., and Sandra Belen. Victim M.L. was abducted from the parking lot of the Firststar Bank Building in North Little Rock, where she was employed. She left work on June 13, 2000, at approximately 4:15 p.m, carrying her purse and some groceries. As she was putting her purse and groceries into her van, she was struck in the back of the head. She turned and saw a tall black male with a gun, whom she later identified as Avron Lovelace. Lovelace put the gun to her head, said, "Bitch, move over," and started pushing her. He instructed her to unlock the passenger door to allow appellant to enter. Lovelace "flipped" her into the back of the van, demanded her keys, and drove the vehicle.

Appellant entered the back seat with M.L. and took her ATM card from her purse. He demanded her personal identification number (PIN). Because she was traumatized, M.L. could not immediately recall her number. She testified that as she attempted to remember her PIN, appellant "got mad and hit me in the head, in the face area, and knocked my glasses off." M.L. testified that she feared she would be shot if she did not cooperate. She was raped by both appellant and Lovelace. M.L. testified that both men cursed her and thatappellant made it clear to her that she had better do what he told her to do.

M.L. also testified that they read her address to her from her driver's license and told her that they knew where she lived, that she lived near them, and that they would come get her. The men drove around searching for an ATM and eventually went to a Kroger store, upon appellant's directions. Appellant again asked M.L. for her PIN and warned her that it "better be right." He went into the store and obtained approximately $500 from her bank account.

They started driving again and picked up, at different times, two more males, who forced M.L. to perform oral sex on them. Appellant and Avron then instructed M.L. to get dressed and to "straighten up" the van and to fix her hair. They released her at a gas station, but before they left, they took all of her jewelry, including her wedding set, her anniversary ring, a ring her husband had bought for her in Germany, an amethyst ring, gold ball earrings, a watch, and a herringbone necklace. She stated that when she had trouble getting her rings off, Avron pulled them off of her hands. Before they left, Avron forced her to hug him and told her to "make it look like I meant it." M.L. drove around until she found a police officer, who then called an ambulance to take her to the hospital.

Two days later, on June 15, 2000, victim L.P. was abducted as she walked to her car, which was parked at the county parking lot along the Arkansas River behind the Robinson Center in Little Rock. At approximately 4:00 p.m., she saw two men, whom she later identified as appellant and Lovelace, in the parking lot. L.P. made it to her car, but as she sat down, the two men were upon her. Lovelace held a gun to her head and told her to shutup when she screamed.

Lovelace ordered L.P. into the back of her car. Appellant got into the back seat with her. He told her to get down, put her face in the seat, and to close her eyes. She testified that she complied with appellant's demands because she was afraid that she would be killed. Lovelace demanded her car keys and began driving. Appellant found two identical bank cards in her purse, and asked which account had the most money; he then demanded her PIN, which she gave to him. Appellant raped L.P. while they were in the back of the car, Lovelace drove through an ATM.

Appellant and Lovelace then took L.P. to a house and Lovelace removed her clothing. Appellant and Lovelace both raped L.P. and forced her to perform oral sex on them. Afterward, pursuant to Lovelace's instructions, appellant blindfolded L.P.. Lovelace then left the house, and appellant raped her again. When Lovelace returned, another man, Virgil Brown, was with him. Lovelace removed the blindfold, but ordered L.P. not to look at him. She was taken to another room in the house, where Brown questioned her. L.P. told Brown that she had three children and needed to go home. Brown told L.P. to get on some cushions that were in the floor; he then raped her. After he left, appellant again raped her on the same cushions. After that, a fourth man, Kedrick Johnson, came into the room and raped L.P. She pleaded with Johnson and told him that she could not take it anymore; that she just wanted to live and go home.

After Johnson left the room, Lovelace brought L.P. her clothes and told her to get dressed. Lovelace, appellant, L.P., and some other people got back into her car and drovearound for "a long time." They finally released her between 11:00 and 11:30 p.m. that evening. L.P. testified, "I was told that one was supposed to cut me up and I was supposed to be buried if I reported them."

On June 15, Sandra Belen was leaving her job at the Public Defender's Commission in Little Rock, when she heard "fast" footsteps behind her. She turned and saw appellant and Lovelace. Appellant waited by the passenger door. Lovelace removed a gun from his belt, told her to shut up (even though she had not screamed), and to open her car. Belen put the key in her car door, but decided to resist. She turned around and told Lovelace "I have four children, please don't do this." Lovelace hit her in the head with the gun, causing her to bleed and to fall between the open door and the car. She did not lose consciousness. Appellant came around to the driver's side of the car and assisted Lovelace in dragging Belen to the back of the car. Lovelace continued to struggle with Belen until Belen saw another woman and managed to evade him. Appellant and Lovelace fled with Belen's purse. Belen received medical treatment for her head injury, including a CAT scan.

I. Aggravated Robbery

Appellant argues that the State failed to prove additional force beyond that used to effectuate the kidnapping and rape charges, sufficient to prove aggravated robbery. Appellant was charged with the aggravated robbery of M.L. in Count 1 and the aggravated robbery of L.P. in Count 13. At the close of the State's case, he moved for a directed verdict on these charges, arguing that the State failed to prove separate acts of force with respect to the charges of rape and aggravated robbery. On appeal, however, he only asserts that theState failed to prove separate acts of force sufficient to support his convictions for aggravated robbery. He maintains that here, the initial contact with the victims was clearly directed only toward a kidnapping and not for the purpose of committing a theft.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. See Boston v. State, 69 Ark. App. 155, 12 S.W.3d 245 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, whether direct or circumstantial. See Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). When reviewing a denial of a directed verdict, we will look at the evidence in the light most favorable to the State, considering only the evidence that supports the judgment or verdict. We will affirm if there is substantial evidence to support a verdict. See Rabb v. State, 72 Ark. App. 396, 39 S.W.3d 11 (2001). Evidence is sufficient to support a verdict if it is forceful enough to compel a conclusion one way or another. See Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002).

We reject appellant's argument for two reasons. First, the State is not required to prove appellant actually used any force to sustain a conviction for aggravated robbery. Pursuant to Arkansas Code Annotated section 5-12-103(a) (Repl. 1997):

(A) A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he:

(1) Is 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.

A person commits robbery, pursuant to Arkansas Code Annotated section 5-12-102(a) (Repl. 1997) if, "with the purpose of committing a felony or misdemeanor theft or resistingapprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another." Physical force is defined as "any bodily impact, restraint, or confinement or the threat thereof." See Ark. Code Ann. § 5-12-101 (Repl 1997) (emphasis added).

It is clear from these statutes that a conviction for robbery or aggravated robbery may stand where no force was applied; that is, the robbery is complete upon the threat of the use of physical force. See Birchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987). Our statutes have focused on the threat of harm rather than the taking of property. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

Appellant and Lovelace were both charged on the same counts. When two or more persons assist one another in the commission of a crime, each is an accomplice and is criminally liable for the conduct of both. See Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). Because Arkansas makes no distinction between the criminal culpability of principals and accomplices, see Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996), appellant is criminally liable for the acts of Lovelace.

Here, there was abundant evidence of both the threat of force and the use of force. Force was initially used to abduct the victims. Lovelace struck M.L. and put the gun to both rape victims' heads. Once M.L. was inside her vehicle, Lovelace flipped her over the seat before appellant demanded her bank card. Appellant struck her in the face as she tried to remember her PIN number. Both rape victims testified that they feared for their lives if they did not cooperate. Clearly, the force of using a gun to compel the victims to get into theirvehicles was the same act of force used to intimidate them into revealing their PINS and cooperating with their assailants' other demands. On these facts, we hold that the trial court did not err in denying appellant's motion for a directed verdict on the aggravated robbery charges. See Williams v. State, supra (affirming denial of motion for directed verdict on aggravated robbery charge where defendant drew a weapon, forced the victim into the passenger seat, drove her vehicle and coerced her into making ATM withdrawals).

II. Theft of Property & Double Jeopardy

Appellant's double jeopardy argument relates to his conviction for theft of property, as a Class B offense, with respect to M.L. At the close of the State's evidence, appellant moved for a directed verdict on this offense, arguing that the State failed to prove that the property taken from M.L. had a value of $2,500 or more, as required by Arkansas Code Annotated section 5-36-103(b)(1)(A)(Supp. 2001). The State responded that Count 3 alternatively charged appellant with committing theft of property under section 5-36-103(b)(1)(B), which provides that theft of property is a Class B felony if the property is obtained by the threat of serious physical injury to the person.

Pursuant to Arkansas Code Annotated section 5-36-103 (Repl. 1997), a person commits theft of property if he:

(1) Knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof; or

(2) Knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner.

Appellant's counsel argued that the State had not proved a separate act of forcedesigned to perpetuate the theft that was unrelated to the force designed to perpetuate the kidnapping and rape of M.L. In other words, appellant argued below that in order to maintain the charge of theft of property under subsection (b)(1)(B) of the statute, the State had to prove an additional threat of force designed solely to perpetuate the theft of M.L.'s property. Appellant now argues that because the trial court denied his directed verdict motion on this charge, his right to be free of double jeopardy was violated because the same evidence of force that was used to sustain the theft of property charge was used to support the charge of aggravated robbery.

This argument is preposterous on its face. Appellant concedes that the offenses of aggravated robbery and theft of property are separate offenses and therefore, that a defendant's conviction on both charges does not subject him to double jeopardy. See, e.g., Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Simply speaking, because the same force which supports a theft of property conviction may also support a conviction for aggravated robbery, appellant's convictions on both charges did not violate his right to be free from double jeopardy.

Moreover, the trial court did not err in denying appellant's motion for a directed verdict on the theft of property charge because, as noted above, there was overwhelming proof of force used to perpetrate the theft of M.L.'s property. Here, appellant was present when Lovelace struck M.L. in the back of her head, forced her into the car at gunpoint, then "flipped" her over the back seat. Appellant then took her purse, took her bank card, struck her in the face, and knocked off her glasses when she was unable to immediately remember her PIN number. Before appellant took the money from her account, appellant again asked M.L. for her PIN number and told her that "it better be right." M.L. also testified that during the course of the events, appellant made it clear that she had better do what he told her. Appellant and Lovelace made certain that she knew that they knew where she lived and they threatened to come to her house.

Even discounting Lovelace's actions for which appellant is fully criminally liable, appellant personally threatened M.L., struck her in the face, and knowingly took money from her bank account. Therefore, we hold that the trial court did not err in denying appellant'smotion for a directed verdict on the theft of property charge.

III. Collateral Estoppel

Appellant, Lovelace, and Virgil Brown were charged with the rape of victim L.P. in Count 18. Appellant does not challenge the sufficiency of the evidence supporting the conviction, but argues that collateral estoppel prevents his conviction for rape under Count 18 because Virgil Brown was found not guilty of the identical charge; therefore, appellant argues that he cannot be found guilty as an accomplice. Again, appellant's argument is utterly unpersuasive.

At the close of the State's case, appellant moved for a directed verdict with respect to Count 18. His counsel claimed that Virgil Brown had been acquitted of the rape and therefore, the doctrine of collateral estoppel precluded the State from trying appellant as an accomplice to that offense. The trial court denied the motion.

The trial court did not err in denying appellant's motion for a directed verdict on this charge. Pursuant to Arkansas Code Annotated section 5-2-405(2) (Repl. 1997), in any prosecution for an offense in which the liability of the defendant is based on conduct of another person, it is no defense that the other person has been acquitted. See, e.g., Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1982); Jared v. State, 17 Ark. App. 223, 707 S.W.2d 325 (1986). Thus, the disposition of Virgil Brown's rape charge was irrelevant, and the doctrine of collateral estoppel did not preclude the State from trying appellant on the same charge.

Moreover, we note that even if Virgil Brown's acquittal was relevant and the doctrine of collateral estoppel applied, the only basis appellant presented that Virgil was acquittedwas the argument of his counsel. He submitted no judgment, docket entry, or any other documentation to prove that Virgil was acquitted. It is well-settled that arguments of counsel are not evidence, even when the argument pertains to proceedings that have taken place in court. See Wright v. State, 67 Ark. App. 365, 1 S.W.3d 41 (1999) (rejecting as evidence attorney's statement that the defendant's conviction had been nol prossed in circuit court).

IV. Use of a Firearm

Appellant's final argument is that the State failed to prove that he committed first-degree battery against Belen. Arkansas Code Annotated section 5-13-201(a)(7) (Repl. 1997) provides that a person commits battery in the first-degree if "with the purpose of causing physical injury to another person, he causes physical injury to a person by means of a firearm." Appellant maintains the State's proof failed in two respects. First, he argues that the BB pistol recovered and entered into evidence is not a firearm as that term is defined under the criminal code. Second, he argues that the physical injury caused by the gun requires shooting the victim with the gun. Appellant's first argument essentially asks us to weigh the evidence at trial. We decline to do so because that work was done by the jury as trier of fact. We also affirm without reaching the merits of his second argument because it is not preserved for review.

A "firearm" is defined as:

any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device.

Ark. Code Ann. § 5-1-102(6)(Supp. 2001). Appellant's argument is premised on the factthat the only gun introduced into evidence was a BB pistol, which does not use an explosive to propel projectiles.

The homes of appellant and Lovelace were searched. The investigating officer testified that a BB pistol was recovered from "one of the houses" but he could not specify whether the pistol was recovered from appellant's home or from Lovelace's home. The officer also testified that the BB pistol recovered was never shown to the victims, but he maintains the BB pistol was consistent with the victims' description of the weapon. He further testified that the BB pistol had the appearance of a semi-automatic pistol.

We hold that the trial court did not err in denying appellant's directed verdict motion. The State concedes that there was no evidence that the BB pistol was the gun with which Lovelace hit Belen. However, nothing in our law requires that the charge of first-degree battery be proved by introducing the firearm on which the charge is based.

The only victim's description that is relevant to the battery charge is Belen's. She merely testified that Lovelace had "a gun." Her testimony was certainly sufficient to prove that appellant struck her with what appeared to her to be "a gun."

Her testimony was also sufficient to prove that the weapon that was used to attack her was a firearm within the meaning of section 5-1-102(6), absent opposing proof that it was not. We observe that there was no proof that the BB pistol was the "gun" that Lovelace possessed or that appellant used to strike M.L. Absent evidence that the gun Belen saw and was struck by was the BB pistol entered into evidence, we hold that the trial court did not err when it denied appellant's motion for a directed verdict on the first-degree battery charge.

Appellant's final argument is that proving first-degree battery by causing physicalinjury by means of a firearm requires the State to prove that he actually shot someone with the firearm. However, he concedes that he did not raise this argument to the trial court. We generally do not consider arguments that are not presented to the trial court. See, e.g., Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997) (refusing to address the sufficiency of the evidence supporting a conviction for second-degree battery where the defendant failed to question the sufficiency of the evidence for second-degree battery either by name or by apprising the trial court of the elements of this offense not proven).1 Therefore, we hold that his final argument is not preserved for appellate review.

Affirmed.

Jennings and Neal, JJ., agree.

1 However, on the merits, this argument, too, must fail. Appellant maintains that although 5-13-201(a)(7) does not specify how the physical injury must be caused, it is clear that using the language "firearm," as opposed to the broader language, "deadly weapon," and by reducing the injury from serious physical injury to mere physical injury, the legislature intended to only proscribe the act of shooting someone. Although it appears that there is no precedent in which our courts have applied section 5-13-201(a)(7) where a firearm was not discharged, this statute does not require that the firearm be fired as the means of causing the physical injury.

As noted above, a person commits first-degree battery if, with the intent to cause physical injury, he causes physical injury to a person by means of a firearm. See Ark. Code Ann. § 5-13-201(a)(7). "Physical injury" includes the impairment of the physical condition, the infliction of substantial pain, or the infliction of bruising, swelling, or visible marks associated with physical trauma. See Ark. Code Ann. § 5-1-102 (14) (Supp. 2001). Clearly, this definition of physical injury encompasses the type of injury received by Belen in this case: a head trauma caused by being struck with the firearm. Section 5-13-201(a)(7) was added to the statute in 1995; section 5-1-102(14)(C), which includes bruising, swelling, or visible marks in the definition of physical injury, was added in 1999. The General Assembly is presumed to have knowledge of its own enactments. To hold that the section 5-13-201(a)(7) requires the injury to be caused by the actual discharge of a firearm would contradict the broad definition of physical injury included in that section.