ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-1402

July 3, 2002

PAUL BRANSON APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT, SIXTH DIVISION

VS.

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Paul Branson was found guilty of aggravated robbery, theft of property valued over $2,500, first-degree battery, and fleeing. He was sentenced as an habitual offender to an aggregate term of eighty years' imprisonment.

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, appellant's counsel has filed a motion to withdraw on grounds that the appeal is without merit. Although the clerk ofthis court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se list of points within thirty days, appellant has chosen not to respond. Counsel for appellant has submitted an abstract and brief purportedly addressing everything in the record that might arguably support an appeal.

One of the adverse rulings was the trial court's denial of appellant's directed-verdict motion on the charge of aggravated robbery. Appellant argued that there was insufficient evidence that he employed deadly force in the commission of that crime.

On September 5, 2000, appellant surreptitiously entered the home of Julius Sears. While Mr. Sears was bent over a task at his dining table, appellant came up behind him and prodded him with an object that Mr. Sears believed to be a gun. Appellant then directed Mr. Sears to take him to "the good stuff." Appellant then ransacked the house taking jewelry, cash, a pistol, and an automobile parked outside. During the robbery appellant struck Mr. Sears on the head with a brick from the bathroom when Mr. Sears tried to escape. Mr. Sears was hospitalized for two days with wounds to his head and arm.

According to Ark. Code Ann. § 5-12-103 (Repl. 1997), a person commits aggravated robbery if he commits robbery and he is armed with a deadly weapon or represents by word or conduct that he is soarmed. A deadly weapon is defined as a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious physical injury or anything that in the manner of its use or intended use is capable of causing death or serious physical injury. Ark. Code Ann. § 5-1-102(4)(Supp. 2001). A motion for a directed verdict is a challenge to the sufficiency of the evidence. Box v. State, 74 Ark. App. 82, 45 S.W.3d 415 (2001). In reviewing the denial of a directed-verdict motion, we view the evidence in the light most favorable to the State and affirm if there is substantial evidence to support the verdict. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). Mr. Sears testified that he believed that the object appellant initially stuck in his back was a gun, and the trial court could have inferred that by his actions appellant had represented to Mr. Sears that he was armed with a gun and would injure Mr. Sears if he did not produce something of value. Mr. Sears also testified that appellant struck him on the head more than once with a brick. The brick was clearly capable of causing death and did, in fact, cause serious physical injury to Mr. Sears, an elderly man, as he was hospitalized for two days for wounds that left him permanently scarred.

Appellant moved for a directed-verdict on the charge of theft of property and argued that the State had failed to prove that thevalue of the stolen jewelry exceeded $2,500. Arkansas Code Annotated section 5-36-101(11)(A)(Repl. 1997) defines value as the market value of the property at the time and place of the offense, or the cost of replacing the property, if the market value cannot be readily ascertained.

Mr. Sears testified, without going into detail, that the total value of the stolen property would have exceeded $2,500. It is well-settled Arkansas law that the owner of personal property is qualified to give an opinion as to its value. Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984). Appellant apparently failed to consider the value of the automobile, as the value of only the jewelry was mentioned in his directed-verdict motion. In any event, appellant did not make a contemporaneous objection to Mr. Sears's testimony about the value of his property. There is substantial evidence to support the trial court's conclusion.

In moving for a directed verdict on the charge of first-degree battery, appellant argued that there was insufficient evidence that Mr. Sears was struck. The trial court did not err in denying appellant's motion. Not only did Mr. Sears testify that he was struck, appellant himself admitted that he had struck Mr. Sears in the statement he gave to police. In addition, photographs of Mr. Sears's injuries corroborated his testimony.

Appellant moved for a directed verdict on the charge of fleeing arguing that there was insufficient evidence that he knew he was being pursued by the police. Officer Dennis Hutchins testified that he observed Mr. Sears's stolen car the day following the robbery and that appellant sped out of a Taco Bell when he was "blue-lighted." Officer Hutchins stated that he pursued appellant at a high rate of speed until appellant hit a curb blowing out a tire. According to Officer Hutchins, appellant jumped out of the car after he lost control of the vehicle and ran on foot. Officer Hutchins then released his canine from the patrol car, and the dog and another officer caught up with appellant in a wooded area. In light of this testimony, it cannot be said that the trial court erred in denying appellant's motion on the charge of fleeing.

The trial court denied appellant's motion to exclude his statement to police in which he admitted his involvement in the crime. Following his arrest appellant gave a statement to Officer Bill Yaeger, but appellant refused to have his statement recorded. Instead, Officer Yaeger composed his own account of what appellant told him. At trial, the statement itself was not introduced into evidence, but Officer Yaeger testified as to its contents and referred to the exhibit during his testimony. In his argument to the trial court, appellant contended that the statement was inaccurate as it was Officer Yaeger's interpretation, whichappellant did not have the opportunity to read. Appellant is essentially challenging the credibility of Officer Yaeger's testimony, and that is a matter to be determined by the trier of fact. Barnett v. State, 346 Ark. 11, 53 S.W.3d 527 (2001). Appellant also contended that Officer Yaeger's testimony amounted to hearsay. Officer Yaeger's testimony regarding the contents of appellant's statement falls within an exception to the hearsay rule as it is a statement against appellant's interest. Ark. R. Evid. 804(b)(3).

Finally, during cross-examination of Mr. Sears, appellant attempted to impeach Mr. Sears with an earlier statement he had made to the police. The State objected on the grounds that counsel had failed to lay a foundation for her inquiry. The trial court sustained the State's objection and instructed counsel to provide a foundation before refreshing Mr. Sears's memory with his statement. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same . . . See Ark. R. Evid. 613(b). Counsel chose not to pursue her line of questioning. Furthermore, counsel did not contend that the trial court's ruling precluded her from impeaching Mr. Sears.

From our review of the record, we find that counsel has complied with Anders and Rule 4-3(j) and that the appeal is withoutmerit. Accordingly, we grant counsel's motion to withdraw and affirm the judgment of conviction.

Affirmed.

Neal and Griffen, JJ., agree.