ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

ANTHONY BENS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-504

December 10, 2003

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SEVENTH DIVISION [CR2002-1854]

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Anthony Bens was convicted in a bench trial of the offenses of aggravated robbery, battery in the first degree, and misdemeanor theft of property. Pursuant to Arkansas Code Annotated section 5-4-403(c)(1) (Supp. 2001), the sentence for the misdemeanor theft-of-property conviction was merged with the sentences for the felonies. Appellant was sentenced to ten years in the Arkansas Department of Correction for each felony offense, with the sentences to run concurrently. On appeal, appellant argues, as he did at trial, that the evidence is insufficient to convict him of these crimes because the victim's identification of him was unreliable. We affirm.

At trial, Marcus Harris, the victim, testified that on April 6, 2002, at nine or ten in the morning, he was at his cousin's College Station home working on a speaker in his car and talking to Anthony King when a car pulled up with people Harris identified as Dirky, Scotty, Boo, and Darkwing inside. Harris said that appellant is also known as Dirky. Harris knew all of the "guys" because they grew up together in College Station.

Harris testified that at first, Scotty was the only person who got out of the car, and he began arguing with King. Harris told both men to leave; King left, but Scotty returned to his car, came back with a pistol, and asked Harris if he was ready to die. Harris told Scotty that if he was going to kill him, to go ahead and do it; Scotty then shot Harris in the leg. Scotty shot again and Harris began yelling for someone to call the police; appellant then got out of the car, grabbed Harris, and began wrestling with him. Harris testified that while appellant was holding him down, appellant told Scotty to hit him in the head with the pistol, which Scotty did, causing Harris to sustain a cut to his head.

Harris said that while they were wrestling, either Scotty or appellant called for Darkwing to come help. He said that while the three were trying to put him in the trunk of his car he grabbed the pistol, but the three of them wrested it from him. Harris said that before they put him back in the trunk, appellant reached into his pocket and took about $600, and they fled when they heard police sirens. Harris denied ever having any problems with appellant, although he admitted that appellant had dated his then-girlfriend while Harris was in prison.

Tracy Blackman testified for the State that she saw three guys trying to put another "guy" in the trunk of a car, and she heard the man yell that he had been shot and needed help. She said she panicked because she thought it was her brother, but she said that the man with the gun told her to go on and get in her car, although she did not think that he had pointed the gun directly at her. She also said that she guessed that appellant was there and that he was participating in the struggle. On cross-examination, Blackman admitted that she cannot see a clear face from a distance without her glasses; that she did not have her glasses on; and that she was mistaken in her original belief that the victim was her brother.

Appellant's aunt, Felicia Winfrey, testified for the defense that appellant was at her mother's house at ten in the morning on April 6 when she stopped by before going to a funeral at eleven. Appellant testified that he was at his grandmother's house from 8:30 until 11:30 that morning, and he denied being with the three other men identified by Harris. He also stated that Harris had a problem with him because he dated Harris's girlfriend while Harris was incarcerated.

At the close of the State's case-in-chief and at the close of all of the evidence, appellant moved for a directed verdict on the bases that there was an unreliable identification of appellant by the victim and that he was not an accomplice to the aggravated robbery or battery; those motions were denied. Appellant now appeals to this court, arguing that there is insufficient evidence to support his convictions because the identification of him by the victim was unreliable. Appellant makes no argument on appeal with regard to whether he was an accomplice.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). When the sufficiency of the evidence is challenged, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Harris v. State, 72 Ark. App. 227, 35 S.W.3d 819 (2000). The test is whether there is substantial evidence to support the verdict, which is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Id. The testimony of one eyewitness is sufficient to sustain a conviction. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002).

Appellant does not argue that any elements of the crimes were not proved by the State; rather, he only argues that the victim's identification of him was not reliable because the victim had a reason to lie about appellant's participation in the crimes. Specifically, appellant contends that Harris lied about him being there to get back at him for dating his girlfriend while Harris was in prison; however, this is simply speculation and conjecture by appellant. Appellant also attacks Tracy Blackman's testimony that she "guessed" that appellant was there. Nevertheless, the trial judge found the State's evidence regarding appellant's participation to be credible, and we are bound by this assessment. Because it is the finder of fact, and not the appellate court, who weighs the evidence presented at trial and determines the credibility of witnesses, see Lenoir, supra, and the trial court obviously found Harris to be a more credible witness, Harris's eyewitness testimony alone is sufficient to sustain appellant's convictions.

Affirmed.

Gladwin and Baker, JJ., agree.