ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION III

WILLIAM DEAN KARABINUS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-1103

June 25, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CR-2002-500]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

Appellant, William Karabinus, was tried as a habitual offender by the court and found guilty of the offenses of aggravated robbery, a Class Y felony; first-degree battery, a Class B felony; and theft by receiving of property valued over $2500, a Class B felony. He was sentenced to serve 120 months for each offense, with the sentences to run concurrently, for a total of 120 months.

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 filed a motion to withdraw on the ground that this appeal is wholly without merit. The motion was accompanied by an abstract and brief referring to everything in the record that might arguably support an appeal, including all motions, objections, and requests decided adversely

to appellant, and a statement of reasons why none of those rulings would be a meritorious ground for reversal. Appellant was provided with a copy of his counsel's brief and notified of his right to file a list of points on appeal within thirty days, but he has not done so.

Appellant's counsel lists four "adverse rulings" in this case: (1) appellant's motion to suppress his statement was never ruled upon, (2) appellant's motion to suppress a photo identification of him was never ruled upon, (3) appellant's objection to the victim's testimony concerning the value of the stolen property was overruled, (4) appellant's motion for directed verdict, which was actually a motion to dismiss because the case was tried to the court rather than to a jury, was denied. In addition, our review of the record reveals that appellant also filed a motion for discovery, with a follow-up letter, and a request for the presence at trial of a crime-scene specialist and/or a latent-print specialist. These additional motions were not ruled upon by the trial court. We find no error with respect to any of the above items.

The motion to suppress appellant's statement, the motion to suppress his photo identification, the motion for discovery, and the request for a crime-scene specialist and/or latent-print specialist can best be discussed together because appellant did not obtain a ruling with respect to any of them. In criminal cases, issues raised, including constitutional issues, must be presented to the trial court to preserve them for appeal. Strickland v. State, 331 Ark. 402, 962 S.W.2d 769 (1998). Moreover, it is incumbent upon an appellant to obtain a ruling from the trial court in order to preserve an argument for appeal. Id. Because the trial court

never ruled on these motions, any argument with respect to them would not be properly before us on appeal.

At trial, appellant objected to the victim's value testimony concerning the stolen truck by stating, "Objection, Your Honor. He's not being charged with theft of the truck, . . . just components of the truck that he pawned back." This objection essentially challenged the relevance of the testimony. The trial court correctly overruled the objection because count three of the original and the amended information charged appellant with unlawfully receiving, retaining, or disposing of stolen property, "to wit: 1987 ISUZU TROOPER, said property being valued in excess of $2500.00 . . . ." In short, appellant was charged with respect to the truck itself, and testimony concerning its value was clearly relevant.

After the State rested its case, appellant's counsel asked for a moment, and then informed the court that appellant had chosen not to testify. Counsel then informed the court that the only evidence the defense would be presenting was the victim's medical records, which were received, and pertinent portions of the records were explained to the court. The defense then rested and asked to be heard on a motion to dismiss. The timing of appellant's motion satisfied the requirement of Rule 33.1(b) of the Arkansas Rules of Criminal Procedure, which provides in pertinent part: "In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence."

The motion to dismiss provided:

Your Honor, I think the State has failed to prove the aggravated robbery. There's been evidence from Detective King that my client said that he was around when two other men jumped him and also the EMS report that other men jumped himand my client is not named in that report when EMS personnel got to him and therefore they have failed to prove the charge of aggravated robbery.

The trial court did not rule on this motion. However, unlike the motions discussed previously, pursuant to Rule 33.1(c) of the Arkansas Rules of Criminal Procedure, "[i]f for any reason a motion or a renewed motion at the close of all of the evidence . . . for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence." Although the sufficiency issue is thereby preserved, it still lacks merit. Clearly, the motion to dismiss is directed only to the charge of aggravated robbery. So any issue on appeal would be limited thereto. Moreover, although not as clear, the motion seems to be limited to an argument that the State did not prove that appellant was involved in the aggravated robbery. However, the victim testified that appellant was his cousin and:

He [appellant] picked somebody up. I do not know his name. At some point, we ended up at an apartment complex. It seemed at that point that's where they were going to stay and wait. We were standing around in the parking lot like everything seemed normal to me. As I was more or less saying my good-byes and about to leave, they suddenly attacked me. They attacked me, both of them. They were hitting me with objects that I don't know exactly how to identify. I was knocked to the ground and knocked unconscious for an undetermined amount of time.

Moreover, the victim later testified, "I have no doubt who the person was that was involved in this. That person was William Karabinus."

Based upon our review of the record and the brief presented to this court, we conclude that there has been full compliance with Rule 4-3(j) and that the appeal is without merit. Counsel's motion to be relieved is granted, and appellant's convictions are affirmed.

Affirmed.

Neal and Crabtree, JJ., agree.