ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION IV

EARSIE FLOWERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-977

SEPTEMBER 4, 2002

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION,

[NO. CR99-1485]

HONORABLE JOHN LANGSTON,

JUDGE

AFFIRMED

Appellant Earsie Flowers appeals his conviction for being a felon in possession of a firearm, a .308 Remington rifle, as found by a jury in Pulaski County Circuit Court. Appellant was sentenced to six years in the Arkansas Department of Correction. He raises five points on appeal asserting that the trial court erred by (1) failing to grant his motion to suppress, (2) allowing the State to proceed on an amended felony information, (3) improperly instructing the jury, (4) failing to grant appellant's Batson motion, and (5) allowing the State to engage in improper voir dire. We affirm appellant's conviction.

First, we set forth the course of events for the sake of clarity. Appellant was subject to three trials. Only in the last trial did the State attain a conviction. These prosecutions were based upon evidence gained in a search of appellant's business place, a used car shop located in North Little Rock, Arkansas. This search was conducted pursuant to a search

warrant, and it revealed the presence of cocaine, drug paraphernalia, and a twelve-gauge shotgun. The State pursued criminal charges for simultaneous possession of drugs and firearms, possession of cocaine with intent to deliver, and possession of drug paraphernalia; these charges were the subject of the first trial.

At or around the time that appellant's business was searched, law enforcement asked for and received consent to search appellant's home. A search of the home revealed the presence of a .308 Remington rifle.

After the first trial commenced, defense counsel moved for and was granted a mistrial. A second trial on these three offenses resulted in an acquittal of the charges. The third trial, which is the subject of this appeal, was for the charge of being a felon in possession of a firearm, which had been severed from the other counts. It was undisputed that appellant had a prior felony.

The State initially charged appellant with two counts of felon in possession of a firearm corresponding to the two firearms (the shotgun found at appellant's business and the rifle found at appellant's home). The State later nolle prossed the count pertaining to the shotgun, announcing that it would proceed on only the rifle found in appellant's house. Subsequently, the State amended the information to reinstate the charge regarding the shotgun found at the business, against appellant's objection and request for dismissal. The trial judge allowed the State to proceed. At the pre-trial hearing on these counts, the State argued that it desired to try appellant for both guns in a single count. The trial judge allowed it. The jury was instructed that if it found that appellant possessed either weapon, he wouldbe guilty. The issue was submitted in interrogatory form so that the jury could indicate which gun, if either, was possessed. The jury found that appellant possessed the .308 Remington rifle found in appellant's home. It is from this conviction that this appeal arises.

We now examine appellant's allegations of error in the order that they were raised. First, appellant challenges the trial court's denial of his motion to suppress the evidence gained in the search of his business. In this motion, appellant argued that the search warrant was overbroad in scope and in the length of time in which it was permitted to be executed and that there was no indicia of the reliability of the informant. The State argues, correctly so, that this issue is moot. Appellant was not found guilty of any charges related to items found at his business. Appellant was convicted of possessing the firearm found in his home, the search of which was not challenged at the trial level. Any resolution of the suppression issue would have no relevance to his conviction, and, with few exceptions, we do not address moot questions. The law affords no appeal without a conviction. See Willis v. State, 76 Ark. App. 81, 62 S.W.3d 3 (2001); Webb v. State, 48 Ark. App. 216, 893 S.W.2d 357 (1995); Ark. R. App. P.-- Crim. 1 (2002).

Appellant's second argument is that the trial judge erred in permitting the State to amend the criminal information. The State asserts that appellant cannot challenge the conviction on this basis because appellant agreed that the State should be able to pursue a conviction on only one count with the jury being charged that it must find which gun was possessed, if either. While we do not discern the comments of defense counsel as consent to proceed as the State desired, we hold that no prejudice resulted to appellant. Appellantadmits in his argument that "the jury found appellant not guilty of the `added' gun." There is no right to appeal from that for which one is not convicted. See Webb v. State, supra. We will not reverse in the absence of prejudice. Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), cert. denied, 519 U.S. 898 (1996).

Appellant's third argument on appeal is that the trial judge erred by refusing his proposed jury instruction. Although this instruction is not included in the abstract, it is clear from appellant's argument to the trial court that the proposed instruction was AMCI 203. That instruction provides that prior convictions may be considered by the jury for the purpose of judging the credibility of that person but not as evidence of guilt of the accused. However, as the State points out, to so instruct would have prevented the jury from considering appellant's prior felony conviction as evidence of his guilt for being a felon in possession of a firearm. This would preclude the State from proving part of its case, that appellant was a felon, which is required to establish that he was a felon in possession of a firearm. See, e.g., Tatum v. State, 21 Ark. App. 237, 731 S.W.2d 227 (1987). Appellant does not present us with any convincing argument or authority to support his argument. His brief states on this point that "[b]ased upon the denial of a fair process and the AMCI, this matter should be reversed and remanded." We will not consider an argument, even a constitutional one, when the appellant presents no citation to authority or convincing argument in its support, and it is not apparent without further research that the argument is well taken. See Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark.68, 919 S.W.2d 192 (1996).

Appellant's fourth argument on appeal concerns a Batson challenge, taken from the holding in Batson v. Kentucky, 476 U.S. 79 (1986). The State exercised a peremptory challenge to remove potential juror Harris, an African-American female. The State responded that Harris was hesitant regarding circumstantial evidence and had a problem with agreeing that she could convict based upon constructive possession. Appellant's counsel objected, asserting that the State had attempted to rehabilitate a different potential juror Mahaffey, a Caucasian female, who gave similar responses to Harris's, in the face of appellant's challenge to Mahaffey. The State pointed out that Mahaffey was later excused for cause after appellant challenged her as a juror on the basis that Mahaffey had exhibited bias toward the State in that she had multiple family members employed in law enforcement. The trial judge concluded that the State offered race-neutral reasons for excusing Harris.

We will reverse a trial court's ruling on a Batson challenge only when its findings are clearly against the preponderance of the evidence. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). 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. Moreover, unless discriminatory intent appears in the prosecution's explanation, the reason given will be considered race-neutral. Hernandez v. New York, 500 U.S. 352 (1991). 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 v. State, 340 Ark. 530, 10 S.W.3d 906(2000).

The mere striking of one African-American venire person does not automatically equate to a prima facie case for a Batson violation. See Cox v. State, 345 Ark. 391, 47 S.W.3d 244 (2001). However, even assuming arguendo that appellant made out a prima facie case of racial discrimination, the State offered a race-neutral explanation for the exercise of its peremptory challenge to Harris. Giving the required measure of deference to the superior position of the trial court, we hold that the trial court's determination that this was a facially race-neutral explanation is not clearly erroneous.

Appellant's final point on appeal is that the trial court abused its discretion when it permitted the State to pose hypothetical questions concerning constructive possession and circumstantial evidence during voir dire. Appellant's brief states that this allowed the State to "fact qualify" the jurors and "created a `conviction climate' during the voir dire process." We hold that the trial court did not abuse its discretion. The purposes of voir dire examination are to discover if there is any basis for challenges for cause and to gain knowledge for the intelligent exercise of peremptory challenges. Ark. R. Crim. P. 32.2; Sanders v. State, 278 Ark. 420, 646 S.W.2d 14 (1983). Undoubtedly, those purposes do not include an attempt to commit the jurors to a decision in advance. Nutt v. State, 312 Ark. 247, 848 S.W.2d 427 (1993). However, our supreme court has instructed:

Hobbs v. State, 277 Ark. 271, 275-76, 641 S.W.2d 9, 12 (1982). The trial court was within its discretion to permit the State to discuss the differences between direct and circumstantial evidence and actual versus constructive possession by the use of hypothetical questions using unrelated factual scenarios.

We affirm.

Stroud, C.J., and Hart, J., agree.