ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION IV

SHANNON DAVID BOYLE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-1146

October 9, 2002

APPEAL FROM THE LONOKE

COUNTY CIRCUIT COURT

[CR00-391]

HONORABLE PHILLIP THOMAS

WHITEAKER, CIRCUIT JUDGE

AFFIRMED

A Lonoke County Circuit Court jury found appellant, Shannon David Boyle, guilty of the offenses of aggravated robbery and theft of property. He was sentenced as a habitual offender to the Arkansas Department of Correction for sixty years for the aggravated robbery conviction and thirty years for the theft of property conviction, with the sentences to be served consecutively. Appellant was also assessed a $6,000 fine with regard to his conviction for theft of property. He raises six arguments on appeal: (1) the evidence is insufficient to support the verdicts; (2) the trial court erred in refusing to grant his motion for a mistrial; (3) the trial court erred in allowing State's exhibit five to be published to the jury; (4) the trial court erred in instructing the jury as to the proper number of his prior convictions; (5) the trial court erred in instructing the jury as to the possible sentencingranges for both offenses; (6) the trial court erred in instructing the jury as to his parole-transfer eligibility. We affirm.

Early on the morning of September 8, 2000, the Exxon gas station in Carlisle was robbed by a white male in his early twenties wearing a blue bandana over his face and a baseball cap. The robber pointed a gun at the cashier, Derrick Strain; demanded money; and after Strain gave him approximately $600, left the store on foot. Derrick Wilkes, Strain's friend, was also present and witnessed the robbery.

On September 15, 2000, Carlisle Chief of Police Brent Cole received a telephone call from the Lonoke Police Department advising him that he needed to interview Joe Franks, a person they had in custody on unrelated charges, with regard to the Exxon robbery. Cole interviewed Franks, who gave a written statement implicating appellant in the robbery. Based upon that information, Cole obtained photos of both appellant and Franks, covered their faces up to the bridge of their noses and the tops of their heads with paper, and asked Strain if he recognized either of the persons; Strain identified appellant. Strain was also shown a six-picture lineup of men with their faces uncovered; Franks's picture was included in that lineup as well, but appellant's picture was not among the six. Strain did not identify any of the six people in the photos as the person who robbed the gas station.

At trial, Joe Franks admitted that he had written a statement for Cole in which he stated that appellant had asked Franks to drop him off at the Exxon station so that he could rob it. The statement also provided that Franks had dropped appellant off at the station and then met him on the other side of the freeway overpass. However, Franks recanted thestatement on the witness stand, except for the portion that he had been high on methamphetamine. Franks testified at trial that he had fabricated the story with the hope that the information would assist him with unrelated pending charges against him.

With regard to his first point on appeal, that the evidence is insufficient to support the verdicts, appellant contends that the State failed to provide evidence at trial to corroborate the accomplice testimony of Joe Franks, which is required by Ark. Code Ann. § 16-89-111(e)(1)(Supp. 2001). This argument was not preserved for appeal for two reasons. First, this argument was never made to the trial court, and arguments made for the first time on appeal will not be addressed. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999). Secondly, it is the appellant's burden to prove that a witness is an accomplice whose testimony must be corroborated; 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. Id. See also Pond v. State, 69 Ark. App. 346, 14 S.W.3d 525 (2000). Failure to do so precludes an appellant from raising the witness-corroboration rule on appeal. Id.

Nevertheless, even if Franks had been determined to have been appellant's accomplice, sufficient evidence was presented by the State to corroborate his testimony. Arkansas Code Annotated section 16-89-111(e)(1) (Supp. 2001) provides:

The corroboration must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). However, the corroborating evidence does not have to be sufficient, by itself, to sustain a conviction. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). In this case, the victim, Derrick Strain, identified appellant as the person who robbed the Exxon station. Such eyewitness testimony is sufficient to sustain a conviction. See Harris v. State, 331 Ark. 353, 961 S.W.2d 737 (1998).

Appellant's second contention on appeal is that the trial court erred in refusing to grant his motion for a mistrial during Joe Franks's testimony. In response to the prosecutor's question of whether Franks was a friend of appellant's on September 15, 2000, when he gave his statement implicating appellant in the robbery, Franks replied, "Well, we - we were both on parole so we weren't supposed to be around each other or anything." Appellant moved for a mistrial based on the prejudicial information regarding inadmissible prior convictions; the trial judge denied the motion, deeming Franks's answer a non-responsive comment not related to any particular question, and offered to issue a precautionary instruction to the jury, which appellant refused.

A mistrial is a drastic remedy that should only be employed when there has been an error of such prejudicial magnitude that justice cannot be served by continuing the trial, or when the fundamental fairness of the trial itself has been manifestly affected. Ward v. State, 338 Ark. 619, 1 S.W.3d 1 (1999). The trial court has wide discretion in granting or denying a motion for mistrial, and such a decision will not be disturbed on appeal absent an abuse ofthat discretion. Id. Furthermore, where the possible prejudice could have been cured by an admonition by the trial court, there is no abuse of discretion when defense counsel has refused the trial court's offer of such a curative instruction. See Ferguson v. State, 343 Ark. 159, 33 S.W.3d 115 (2000). In the present case, the trial court's denial of appellant's motion for mistrial was not an abuse of discretion.

Appellant next argues that the trial court erred in allowing his prior felony convictions to be published to the jury and taken to the jury room during deliberation in the sentencing phase. However, appellant did not object when the State introduced the prior convictions into evidence, when the evidence was published to the jury, or when the jury foreperson asked to take the exhibit to the jury room during deliberations. Arguments will not be considered on appeal absent a specific, contemporaneous objection at trial. Johnson v. State, 342 Ark. 186, 27 S.W.3d 405 (2000). Furthermore, an objection to the admission of evidence must be made in the trial court to preserve the issue for appeal. Colbert v. State, 346 Ark. 144, 55 S.W.3d 268 (2001). For these reasons, this argument was not preserved for appeal.

Appellant's last three arguments pertain to instructions given to the jury. However, the abstract does not indicate that appellant ever objected to any of the jury instructions. This court will not consider issues raised for the first time on appeal. Napier v. State, 74 Ark. App. 272, 46 S.W.3d 565 (2001).

With the exception of the sentencing instruction for the theft of property conviction, all of the instructions of which appellant complains were erroneous. However, two of theinstructions, although erroneous, were harmless. The miscalculation of the number of appellant's previous convictions as ten instead of eight was harmless because the habitual offender statute draws no distinctions beyond four convictions. See Ark. Code Ann. § 5-4-501(b)(1) (Repl. 1997).

Likewise, the giving of an erroneous sentencing range as a habitual offender for armed robbery was also harmless. With regard to the aggravated robbery conviction, a Class Y felony, the trial judge gave the sentencing instruction for the lesser range of a Class Y felony for a habitual offender with more than one but less than four previous felony convictions, which is ten to sixty years, or life, see Ark. Code Ann. § 5-4-501(a)(2)(A) (Supp. 2001), instead of the correct, harsher sentencing range for a Class Y felony as a habitual offender with four or more previous felony convictions, which is ten years to life in prison, see Ark. Code Ann. § 5-4-501(b)(2)(A) (Supp. 2001). Appellant's sentence was sixty years, which falls within the statutory range provided.

With regard to the sentencing instruction for the theft of property conviction, a Class C felony, the trial judge properly gave the habitual offender sentencing instruction for a Class C felony with four or more previous felony convictions, which is a term not less than three years nor more than thirty years. See Ark. Code Ann. § 5-4-501(b)(2)(D) (Supp. 2001). Appellant complains that the addition of the instruction that the jury could also impose a fine of not more than $10,000 was erroneous because Ark. Code Ann. § 5-4-501(b)(2)(D) does not provide for a fine. However, this statutory provision is concerned only with extended terms of imprisonment for habitual offenders, not fines. Arkansas CodeAnnotated section 5-4-201 (Repl. 1997) addresses the limitation on the fine amounts that can be imposed upon defendants convicted of felonies. Subsection (a)(2) of this section provides that a fine cannot exceed $10,000 if the conviction is a Class C felony; therefore, the trial judge correctly instructed the jury on this point.

Appellant's last point of appeal is that the trial court gave an erroneous instruction regarding his parole-transfer eligibility. The jury was instructed that appellant would be eligible after he had served fifty percent of his sentence. Arkansas Code Annotated section 16-93-611(a) (Supp. 2001) requires that a person convicted of aggravated robbery must serve seventy percent of his sentence before he will be eligible for parole or community punishment transfer, not fifty percent. Therefore, we cannot say that the erroneous instruction by the trial court was not clearly prejudicial. However, there was no objection to this instruction. For this reason, we are constrained to affirm. See Jenkins v. State, 60 Ark. App. 1, 959 S.W.2d 57 (1997) (holding that because no objection was made to the jury instruction in the trial court, it could not be considered on appeal).

Affirmed.

Crabtree and Baker, JJ., agree.