ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION III

CACR01-686

October 2, 2002

DAVID EARL GIPSON AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

FORT SMITH DISTRICT

[CR00-361, 362; CR00-364, 365, 366, 367]

V. HON. J. MICHAEL FITZHUGH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Appellant David Earl Gipson appeals from a jury conviction of six counts of fraudulent insurance act, four counts of theft of property, and three counts of second-degree endangering the welfare of a minor. He received a total sentence of seventy years' imprisonment. Appellant appeals on three assignments of error, namely that (1) the trial court erred in failing to grant appellant's motions for directed verdict, (2) the trial court erred in failing to grant appellant's motion to suppress, and (3) the trial court erred in failing to grant trial counsel's motion to withdraw and appellant's pro se motion to dismiss attorney. We affirm on all points.

Appellant and his twin brother were implicated in connection with the staging of six automobile accidents in Sebastian County. On March 8, 2000, while appellant was incustody at the Sebastian County Detention Center for a parole violation, Special Agent Ed Gray of the Federal Bureau of Investigation attempted to discuss the staged accidents with appellant, but appellant refused to give a statement. On April 13, 2000, Special Agent Gray and Detective Ron Lockhart of the Fort Smith Police Department served appellant and his brother with arrest warrants. On April 14, 2000, Mary Scheele, a jailer at the detention center, paged Detective Lockhart and notified him that the Gipson brothers wanted to talk with him. On April 18, 2000, appellant and his brother were taken to the Fort Smith Police Department to meet with Officers Gray and Lockhart. When Special Agent Gray and Detective Lockhart arrived at the interview room, Lieutenant David Kimball of the Yell County Sheriff's Department was taking a statement from appellant. According to appellant, Kimball allegedly threatened him with the removal of his children in connection with appellant's charges of child endangerment. After Kimball's interrogation, appellant conferred with his brother for five to ten minutes before he indicated that he wanted to give a statement to Officers Gray and Lockhart. Appellant signed the Miranda rights waiver form and gave a statement to Special Agent Gray and Detective Lockhart. In that statement, appellant admitted that he staged six car wrecks in Sebastian County from October 1999 to January 2000. Appellant also stated that he had not been coerced or threatened and that he had not been promised anything in exchange for making the statement. In fact, the interrogating officers explained repeatedly to appellant that no promises had been made. Deputy Scheele was not on duty at the detention center when appellant gave his statements.

At the suppression hearing, Special Agent Gray reiterated that appellant had notreceived any promises in return for his statements on April 18, that appellant had not been threatened, and that appellant not only signed the waiver form, but also stated verbally that he understood his rights. During the defendant's case-in-chief, appellant called Detective Lockhart and testified in his own defense. Appellant testified that Detective Lockhart did not make threats or promises to him. He further testified that at the time he gave the statement he was twenty-nine years old, had earned a GED, could read and write, and understood English. Subsequently, the trial court denied appellant's motion to suppress. The trial court also denied appellant's directed-verdict motions, a motion to withdraw by appellant's counsel, and appellant's pro se motion to dismiss counsel.

I. Substantial Evidence

Appellant contends that the trial court erred in failing to grant his motions for directed verdict, and specifically that there was no substantial evidence to prove that he knowingly committed the various criminal offenses and thus met the required mental states. When an appellant challenges the sufficiency of the evidence, we address this issue prior to all others. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). A motion for directed verdict is a claim aimed at the sufficiency of the evidence. See generally Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). When reviewing a sufficiency claim, this court views the evidence in the light most favorable to the State, and the conviction is affirmed if there is substantial evidence to support the verdict. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). Substantial evidence is evidence that is of "sufficient force and character that it will, with reasonable certainty, compel a conclusion . . . , without resorting to speculation orconjecture." Id. Circumstantial evidence may constitute substantial evidence. Gregory, 341 Ark. at 247, 15 S.W.3d at 693. In its review, this court considers evidence without respect to whether it was properly admitted. Wortham v. State, 65 Ark. App. 81, 985 S.W.2d 330 (1999).

A fraudulent insurance act is "an act or omission committed by a person who, knowingly and with intent to defraud, commits, or conceals any material information concerning . . . [p]resenting to an insurer . . . false information as part of . . . a fact material to [a] claim for payment or benefit pursuant to an insurance policy." Ark. Code Ann. § 23-66-501(4)(A)(iii) (Repl. 2001). To defraud is to "cause injury or loss" to a person "by deceit." Black's Law Dictionary 434 (7th ed. 1999). Deceit is defined as the "act of intentionally giving a false impression." Id. at 412. Information is material if it is of such "a nature that knowledge of the item would affect a person's decision-making process." Id. at 991.

Theft of property exists if a person "[k]nowingly 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 if he "[k]nowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5-36-103(a)(1)-(2) (Supp. 2001). The Code defines "deception" as "[c]reating or reinforcing a false impression . . . that the actor does not believe to be true; or . . . [p]reventing another from acquiring information which would affect his judgment of a transaction; or . . . [e]mploying any other scheme to defraud." Ark.Code Ann. § 5-36-101(3)(A)(i)-(ii), (v) (Supp. 2001).

Lastly, endangerment of the welfare of a minor occurs if a person "knowingly engages in conduct creating a substantial risk of serious harm to the physical or mental welfare of one known by the actor to be a minor." Ark. Code Ann. § 5-27-204(a) (Repl. 1997).

Our criminal code provides that a person "acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such attendant circumstances exist," or "acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such result." Ark. Code Ann. § 5-2-202(2) (Repl. 1997). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Circumstantial evidence of a culpable mental state may constitute substantial evidence to sustain a guilty verdict. Id. Notably, a jury is not required to believe a defendant's attempt to present evidence to the contrary because the credibility of the witnesses is a matter for the jury to decide. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000).

Appellant argues that the State lacked substantial evidence to prove that he acted knowingly in any of the offenses that resulted in his conviction. We disagree with appellant and affirm because substantial evidence exists to support all the staged-accident convictions. However, we only address one of the six accident cases because appellant failed to make specific motions for directed verdict in the five others and did not obtain specific rulings onthese. Where an appellant failed to obtain a specific ruling below, we do not consider those points on appeal. Huddleston v. State, 347 Ark. 226, 61 S.W.3d 163 (2001); Morgan v. Neuse, 314 Ark. 4, 857 S.W.2d 826 (1993). Objections and questions left unresolved are waived and may not be relied upon on appeal. Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990). In the absence of findings of fact or rulings on issues raised below, the argument is not preserved for appeal. Kulbeth v. Purdom, 305 Ark. 19, 805 S.W.2d 622 (1991). However, even if we could reach the merits of appellant's argument regarding the remaining five staged-accident cases, we would still affirm because we find substantial evidence to support those convictions as well.

Notably, the one staged-accident case properly before us for review resulted in a charge of fraudulent insurance act and endangerment of a minor, but not in a charge for theft of property. We therefore cannot reach appellant's argument that there was insufficient evidence to convict him on theft of property charges. The facts surrounding this one incident are as follows.

On January 27, 2000, in snowy weather conditions, appellant was involved in an accident with Do Van Le on Rogers Avenue in Fort Smith. Appellant's car "bumped" Le's car on the side. Then, as Le was trying to get to the side of the road, he hit appellant's car. Appellant's car ended up parked on the sidewalk. Melissa Gipson, appellant's wife; Amanda Gipson, appellant's daughter; Danny Gipson, appellant's twin brother; Syreatha Gipson, Danny's wife; and one other person, Harold Adams, were all passengers in the car driven by appellant. Appellant made a personal injury claim on behalf of his daughter Amanda. Shelter Insurance Company did not pay any claims in this accident because Le disputed liability, and they could not resolve the conflict between the parties. At trial, Le testified that the impact of the two cars could not have forced appellant's car onto the sidewalk. Melissa testified that they drove around for a couple of hours trying to have a wreck before they collided with Le. She further testified that Amanda was not injured although appellant filed a claim for her. Syreatha testified that the accident was not Le's fault. Melissa and Syreatha pleaded guilty for their involvement in this accident. Appellant admitted on the videotape, during his Mirandized interview, that the accident was staged and that no one was injured in the accident.

We hold that the foregoing was substantial evidence to support appellant's conviction for committing a fraudulent insurance act. During the taped interview, appellant admitted the staging and that no one was injured. The jury viewed that tape. Appellant filed a personal injury claim for Amanda even though she was not injured. Shelter Insurance processed the claim based on appellant's false representations. Appellant knowingly filed a claim with Shelter Insurance in which he represented that Amanda had been in a legitimate accident.

Similarly, we find that substantial evidence supports appellant's conviction for endangering the welfare of a minor, Amanda. Appellant allowed Amanda to be involved in a staged car wreck. She could have been injured. Appellant knew that she could have been injured and knowingly engaged in conduct that created a substantial risk of serious harm to his minor daughter.

However, appellant additionally contends that the State did not demonstrate his culpable mental state because the testimony of Melissa and Syreatha-as accomplices-was not corroborated. The State correctly points out that appellant makes this argument for the first time on appeal and that appellant never met his burden to prove that the witnesses were accomplices whose testimony had to be corroborated. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999) (holding that a defendant must either have the trial court declare a witness to be an accomplice as a matter of law or submit the issue to the jury for determination); Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). Therefore, we do not need to reach the merit of that contention. McGehee, 338 Ark. at 160, 992 S.W.2d at 115 (holding that the issue is not preserved for appellate consideration where the witness was never found to be an accomplice, and where appellant failed to request that accomplice instructions be submitted to the jury). However, even if this argument was properly before us, there is enough circumstantial evidence to corroborate the testimony of Melissa and Syreatha, because appellant gave a complete admission. Accordingly, we hold that the trial court did not err in denying appellant's motion for directed verdict, and affirm.

II. Motion to Suppress

Appellant also contends that Deputy Scheele was a material witness because she could testify as to whether appellant reinitiated contact with the police, deemed relevant for the question of voluntariness of appellant's statements, and that the trial court consequently erred in denying his motion to suppress statements made during that interrogation. In reviewing a trial court's ruling on a motion to suppress, this court makes an independentdetermination based on the totality of the circumstances and reverses the trial court's ruling only if it is clearly against the preponderance of the evidence or clearly erroneous. Stephenson v. State, 71 Ark. App. 254, 29 S.W.3d 744 (2000). We review the evidence in the light most favorable to the appellee. Id.

Appellant argues that the State failed to call Scheele as a material witness, even though appellant called her as a witness in his case-in-chief and did not question her about this issue. In reviewing the voluntariness of a statement or confession, we can make an independent determination based on the "entire record," including trial testimony. Hignite v. State, 265 Ark. 866, 581 S.W.2d 552 (1979). Scheele's testimony is part of the record. Thus, we can consider her testimony, even though appellant chose not to abstract it.

Generally, the State has the burden to produce all material witnesses to a custodial statement challenged by the accused as coerced. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). In that sense, witnesses are material only when they are capable of testifying concerning the defendant's claim that his statement was coerced. See Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Notably, the witness must have some connection to the alleged acts of coercion or an opportunity to observe them taking place. Oliver v. State, 77 Ark. App. 202, 72 S.W.3d 547 (2002) (citing Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995); Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973)).

Appellant argues that the State failed to produce Deputy Scheele as a material witness at the suppression hearing. However, Deputy Scheele was a witness at trial. Her testimony was properly considered by the trial court when it denied appellant's renewed suppressionmotion at the end of his case and at the conclusion of the State's rebuttal evidence.

We specifically hold that Deputy Scheele was not a material witness for purposes of evaluating appellant's coercion claim within the context of his suppression motion. At best, Scheele was a relevant witness only for the limited question of who contacted the officers and whether she did so upon appellant's request. However, appellant did not establish why Scheele was a material witness regarding his coercion argument. She was not present when appellant gave his statement and did not participate in the interrogation. She was not connected with the alleged acts of coercion, nor did she have an opportunity to observe them taking place. Moreover, the trial court heard testimony by officers who participated in the interrogation. Appellant's testimony showed that he understood his rights and was capable of making an intelligent and voluntary decision. Appellant also signed a Miranda waiver form. Appellant fails to point this court to any evidence that would suggest coercion. At best, appellant alludes to a separate incident that took place in a different interrogation preceding the one in question, when Lieutenant Kimball allegedly threatened appellant with the removal of his children. But appellant's motion to suppress does not concern, or even address, the Kimball interrogation. Instead, the motion as well as the suppression hearing focused on the materiality of Deputy Scheele as a witness. Therefore, we hold that there was no error in the trial court's decision to deny appellant's motions to suppress because Deputy Scheele was not a material witness regarding the coercion claim.

III. Motion to Withdraw

Appellant's final point concerns the alleged error of the trial court in denyingappellant's counsel's motion to withdraw and appellant's pro se motion to dismiss counsel. Upon review of a trial court's denial of a motion to withdraw or a motion to dismiss counsel, we uphold the lower court's ruling in the absence of an abuse of discretion. Davis v. State, 308 Ark. 481, 825 S.W.2d 584 (1992). The constitutional right to counsel, where applicable, also bears with it the right to representation free from conflicts of interest. Wilburn v. State, 346 Ark. 137, 56 S.W.3d 368 (2001) (citing Wood v. Georgia, 450 U.S. 261 (1981)). Nonetheless, the right to counsel "of one's choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient, and effective administration of justice." Smith v. State, 68 Ark. App. 106, 111, 3 S.W.3d 712, 715 (1997). Likewise, one may not seek new counsel simply to frustrate or delay the administration of justice. Bryant v. State, 304 Ark. 514, 803 S.W.2d 546 (1991). In the present case, we find no error and affirm.

Mark Horoda was appointed to represent appellant on November 15, 2000. On March 23, 2001, Horoda filed a motion to withdraw stating that (1) appellant believed that Horoda had a conflict of interest based on his previous representation of Melissa Gipson, (2) Melissa was a potentially adverse witness in the action, (3) appellant insisted on pursuing an objective that Horoda found imprudent, and (4) appellant had declared that he no longer desired Horoda's representation. On March 27, 2001, at a hearing on Horoda's motion, Horoda notified the trial court that he had not previously represented Melissa Gipson, but that he had represented appellant in a personal injury case for an accident that occurred on December 13, 1999-one of the accidents leading up to the fraudulent insurance act andother charges against appellant. Horoda also stated that appellant informed him that he would subpoena him to be a witness in the criminal case. After appellant proffered Horoda's testimony at a hearing on March 30, 2001, the trial court denied the motion to withdraw.

The trial court reasoned that appellant had not been diligent in his request because although appellant had known that Horoda was his attorney since November 15, 2000, he had waited until "the last minute" to file his motion. In addition, appellant had not previously listed Horoda as a witness in his response to the State's discovery request. Regarding Horoda's proffered testimony - namely that Horoda thought that appellant's case was legitimate when he initially accepted appellant's personal injury case-the trial court found that this testimony was irrelevant to the issue of whether a crime in fact had occurred or not. The court considered the proffered testimony to be "a self-serving statement regarding a witness's state of mind on his subjective beliefs."

On April 5, 2001, appellant filed a pro se motion to dismiss his attorney contending that he and Horoda had a conflict of interest because (1) Horoda had represented Melissa, (2) Horoda "may be a potential" witness, and (3) Horoda refused to file certain motions and subpoena "numerous" witnesses as he had requested. The trial court summarily denied the motion. Appellant's trial started on April 9, 2001.

We hold that the trial court did not abuse its discretion by denying Horoda's motion to withdraw and appellant's pro se motion to dismiss counsel. Appellant contends that Horoda should have been dismissed as his attorney because he was a necessary witness for his defense. The trial court considered this argument in denying the two motions. The trialcourt simply ruled, based on the proffered testimony, that Horoda was not likely to be a necessary witness. Therefore, appellant fails to demonstrate that not being able to call Horoda to testify prejudiced him. The "cornerstone principle" is "whether prejudice will result to the client as a result of the conflict of interest." Wilburn, 346 Ark. at 143, 56 S.W.3d at 369. Prejudice must be "real and have some demonstrable detrimental effect on the client and not merely be abstract or theoretical." Id. Appellant cannot demonstrate that the lack of Horoda's testimony concerning his thoughts on one of appellant's personal injury claims prejudiced his case.

Affirmed.

Roaf, J., agrees.

Pittman, J., concurs.