NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION IV

EDGAR FONDON

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR01-1200

NOVEMBER 20, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR1999-3502]

HONORABLE JOHN W. LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant, Edgar Fondon, appeals from three convictions of aggravated robbery in violation of Ark. Code Ann. § 5-12-103 (Repl. 1997), aggravated assault in violation of Ark. Code Ann. § 5-13-204 (Repl. 1997), and misdemeanor theft of property in violation of Ark. Code Ann. § 5-36-103 (Supp. 2001) by a jury in Pulaski County Circuit Court. On June 27, 2001, he was sentenced to eighteen years, six years, and one year in the Arkansas Department of Correction. The felony sentences were to run consecutively and the misdemeanor sentence was to run concurrently. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Supreme Court and the Court of Appeals, his lawyer has filed a motion to withdraw as counsel on the ground that there is no merit to this appeal. Appellant was notified of his right to file a pro se list of points on appeal within thirty days, and appellant has exercised that right. The State has filed a brief in response to appellant's points on appeal.

Counsel's motion was accompanied by a brief and abstract of the record referring to matters in the record that might arguably support this appeal. Counsel states that no reversible error was committed in this case. The State agrees with appellant's counsel that there is no merit to the appeal. Appellant's counsel notes the following two instances where the trial court ruled adversely to appellant: (1) the denial of appellant's motion for a directed verdict on all three charges, and (2) the denial of appellant's motion for a continuance. Appellant's list of pro se points on appeal includes the following two arguments: (1) a challenge to the sufficiency of the evidence because the only evidence to support his conviction was the uncorroborated testimony of the victim, and (2) a double jeopardy violation because theft of property is a lesser-included offense of aggravated robbery.

The denial of appellant's motion for a directed verdict was addressed in both appellant's counsel's brief and appellant's pro se list of points on appeal. During trial, appellant moved for a directed verdict at the close of the State's case, and the motion was based on the State's failure to prove a prima facie case for aggravated robbery, aggravated assault, and misdemeanor theft of property. At the close of the case for the defense and after the State's rebuttal witness, appellant renewed his motion, arguing that the State failed to make its prima facie case. The trial court denied all motions for directed verdict. A directed-verdict motion is treated as a challenge to the sufficiency of the evidence. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). When the sufficiency of the evidence is challenged, the appellate court considers only evidence that supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Id. Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id. In order to preserve a challenge to the sufficiency of the evidence, an appellant must make a specific motion for a directed verdict which advises the trial court of the exact element ofthe crime that the State has failed to prove. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998); see Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997). Also, if an appellant is arguing that the statutory elements of his crime were not proved, he must provide the trial court with more than a general motion for a directed verdict. Id. (citing Stewart v. State, 320 Ark. 75, 77, 894 S.W.2d 930, 932 (1995)); Webb v. State, 327 Ark. 51, 938 S.W.2d 806 (1997).

Here, appellant's counsel made the following argument in support of his directed-verdict motion:

At this time we move to renew all objections. Also, Your Honor, I make a Motion for a Directed Verdict on aggravated robbery in that the State has failed to prove a prima facie case in that the Defendant purposely committed theft while employing or threatening to employ physical force on Robert Marshall while armed with a deadly weapon. And that they failed to prove a prima facie case for aggravated assault in that the Defendant purposely engaged in conduct that created a substantial danger of death or serous physical injury to Robert Marshall, and Defendant did so under circumstances manifesting extreme indifference to the value of human life. Further, that they have shown a prima facie case on theft of property, and failed to show the Defendant knowingly took unauthorized control of the property of Robert Marshall with the purpose of depriving the owner thereof, the property being valued at less than $500.00.

Because appellant failed to specify the exact element of the crime that the State failed to prove and failed to provide more than a general motion for a directed verdict, this issue has not been adequately preserved for our review.

In appellant's pro se list of points on appeal, the sole basis for his sufficiency of the evidence argument was that the only evidence that supported his conviction was the uncorroborated testimony of the victim, Mr. Marshall. However, this argument was not made below. See Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998) (holding where an appellant argues on appeal grounds for a directed verdict in addition to the grounds he raised below, the appellate court limits its review to those grounds that were presented to the trial court).

Second, appellant moved for a continuance at the beginning of trial because he had learnedthat one of two alibi witnesses was unable to attend because she was in the hospital. The trial court and defense counsel had the following discussion:

THE COURT: And what's this one going to testify? The one that's missing going to testify to that the other one will not?

MR. BLAIR: Your Honor, their testimony is essentially the same.

MR. BLAIR: Your Honor, they will testify that on the night this robbery was to have occurred that Mr. Fondon, they met with Mr. Fondon at around 7:30 that evening, and at that time both of them left their children with Mr. Fondon. Those children being under the age of 18 months. They returned around twelve o'clock, twelve to 12:30 that night with Mr. Fondon there still taking care of their children.

THE COURT: But the testimony would be exactly the same as the other witness who's here to testify, except just from a different person?

MR. BLAIR: Essentially the same, Your Honor.

The State objected to the continuance, and the trial court denied the motion. Pursuant to Arkansas Rule of Criminal Procedure 27.3 (2002), the trial court must grant a continuance upon a showing of good cause and only for as long as necessary, taking into account the request or consent of the prosecuting attorney or defense counsel and also the public interest in promptly disposing of the case. Further, a trial court should consider the following factors in making its determination whether to grant a continuance: (1) the diligence of the movant; (2) the probable effect of the testimony at trial; (3) the likelihood of procuring the witness's attendance if the trial is postponed; and (4) the filing of an affidavit stating what facts the witness would prove and that the appellant believes them to be true. See Turner v. State, 326 Ark. 115, 119, 931 S.W.2d 86 (1996). When reviewing the grant or denial of a motion for continuance, this court employs an abuse of discretion standard. Ware v. State, 348 Ark. 181, 72 S.W.3d 95 (2002) (citing Anthony v. State, 339 Ark. 20, 2 S.W.3d780 (1999)). An appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance, but also show prejudice that amounts to a denial of justice. Turner, supra.

We hold that the trial court did not abuse its discretion by denying appellant's motion for a continuance and that appellant failed to demonstrate any prejudice. Here, appellant's counsel requested a continuance at the beginning of trial, and the basis for that motion was that one of appellant's witnesses was in the hospital. The trial judge inquired as to the substance of the absent witness's testimony, and appellant's counsel admitted to the trial judge that the testimony would be "essentially the same" as Miss Cullins, another alibi witness that was present to testify at trial. Miss Cullins testified as to precisely what appellant's counsel had said the absent witness would testify to. As a result, appellant cannot show the trial court abused its discretion by denying the motion for continuance, nor can he show prejudice that amounted to a denial of justice; therefore, we affirm the trial court's order denying the motion for a continuance. See Henderson v. State, 310 Ark. 287, 835 S.W.2d 865 (1992) (upholding the denial of a motion for continuance where the witness's testimony, if present, would have been cumulative).

We now consider the only argument made by appellant in his pro se list of points on appeal that was not addressed in counsel's brief. He argues that his theft of property conviction violated double jeopardy in that theft of property is a lesser-included offense of aggravated robbery. When the argument of double jeopardy was not raised below, we cannot consider that argument on direct appeal. State v. Montague, 341 Ark. 144, 14 S.W.3d 867 (2000). There is no indication in the record that appellant made any argument relating to double jeopardy at the trial court level. Thus, because this issue was not preserved below, we will not consider it on appeal.

From our review of the record and the brief presented to this court, we find that there hasbeen full compliance with the requirements of Rule 4-3(j). This appeal is without merit, and counsel's motion to be relieved is granted.

Robbins and Vaught, JJ., agree.