ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION IV

DOMONIC LASEAN SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-20

JANUARY 14, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

SECOND DIVISION,

[NO. CR01-3217]

HONORABLE CHRISTOPHER

CHARLES PIAZZA, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Domonic Lasean Smith was convicted in a bench trial of aggravated robbery and misdemeanor theft of property. The trial court sentenced Mr. Smith to ten years in prison. Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j)(1) of the Rules of the Arkansas Supreme Court and Court of Appeals, Mr. Smith's counsel has filed a motion to be relieved on the grounds that the appeal is without merit. Mr. Smith's counsel's motion was accompanied by a brief discussing all adverse rulings, and a statement as to why each ruling cannot arguably support an appeal. Mr. Smith 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 has failed to do so. We affirm.

The victim in this case was Joseph Lowery McCardell, Jr. Mr. McCardell testified that he drove to an apartment complex to pick up his girlfriend on December 23, 2001. When he parked his car, he was blocked in by a car being driven by Mr. Smith. After exiting his car, Mr. McCardell was approached by four men. According to Mr. McCardell, he was carrying a gun

and there was a struggle over his gun. One man told Mr. McCardell to "give it up," and during the altercation Mr. McCardell's gun was taken along with more than $500 in cash from his pocket. During this time, Mr. Smith was standing a couple of feet from Mr. McCardell, holding a gun on him. After being robbed, Mr. McCardell fled on foot and heard several gunshots while he was fleeing.

Officer Steven Bullock testified that he received a complaint from Mr. McCardell on December 23, 2001, and made contact with him. Mr. McCardell gave a statement, and later selected Mr. Smith out of a photo lineup.

Mr. Smith called two defense witnesses. These witnesses testified that, on the day of the alleged offenses, Mr. Smith was with them inside a nearby house playing video games when they heard gunfire and looked out the window to see the victim running away.

Mr. Smith's counsel correctly asserts that there was only one adverse ruling, and that it cannot support a meritorious appeal. During cross-examination of Officer Bullock, defense counsel asked Officer Bullock if he was aware that the alleged victim had been charged in a shooting, and Officer Bullock responded that he was not. The State objected on relevancy grounds, and the objection was sustained. The objection was properly sustained because the evidence being offered was irrelevant. Moreover, as appellant's counsel points out, even if the trial court's ruling was erroneous it was not reversible error because appellant cannot demonstrate prejudice, and we will not reverse in the absence of prejudice. See Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).

Appellant's counsel has also noted that there can be no challenge to the sufficiency of the evidence because the issue is not preserved for review. This is because appellant failed to move for dismissal at the close of the evidence pursuant to Ark. R. Crim. P. 33.1(b). Such failure constitutes a waiver of any question pertaining to the sufficiency of the evidence to support the verdict. Ark. R. Crim. P. 33.1(c).

Based on 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)(1) and that the appeal is without merit. Appellant's counsel's motion to be relieved is granted, and the judgment is affirmed.

Affirmed.

Vaught and Crabtree, JJ., agree.