Robinson v. StateRobinson v. State
After a jury trial, appellant was convicted of two counts of attempted first-degree murder and two counts of first-degree battery. His sentence was enhanced for committing a felony with a firearm, and he was sentenced to serve a consecutive total of 135 years’ imprisonment. On appeal, he argues that the evidence was insufficient to support his convictions; that the trial court erred in refusing to grant his requested continuance; that the trial court erred in denying his request for a lesser-included-offense instruction; and that the trial court failed to exercise its discretion in ordering that appellant’s sentences be served consecutively. We affirm.
In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and will affirm a conviction if substantial evidence exists to support it. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. A brief recitation of the facts will suffice.
The victims, Michael Walker and Eric Washington, testified that they stopped at a club near Malvern on June 29, 2008, and waited in their parked car for some friends to join them. They stated that, shortly afterward, appellant and Jeff Traylor arrived in another car and began shooting at them. Neither victim was armed, and both testified that they saw appellant shooting at them. Both victims sustained gunshot wounds.
Appellant also asserts that the trial court erred in denying his motion for a continuance based on the State’s failure to timely notify appellant of a witness (Mr. Harris) that the prosecution intended to call. Appellant’s objection was that he had no opportunity to investigate the witness’s criminal history. On appeal from such a ruling, an appellant must not only demonstrate that the trial court abused its discretion by denying the motion for a continuance but also must show prejudice that amounts to a denial of justice. Cherry v. State, 347 Ark. 606, 66 S.W.3d 605 (2002). No such prejudice is shown in this case. The trial court permitted appellant’s attorney to examine the witness and determine that the failure of the NCIC check to reveal a suspected criminal conviction in California was because the witness was a juvenile when the offense was committed. More importantly, the trial court indicated that it was inclined to grant the appellant’s motion to exclude Harris as a witness, but appellant declined and decided to call Harris as a witness for the defense; when he did so, Harris testified that he did not see appellant shoot but did see Traylor shooting at the victims. Here, where appellant himself decided to call this witness, and the witness’s testimony was sufficiently exculpatory that appellant relied on it in his closing argument, we cannot say that appellant suffered a denial of justice by not being afforded a continuance to allow him time to impeach that witness’s credibility.
Finally, appellant argues that the trial court stated that it was bound by the jury’s recommendation of consecutive sentences and that the court thereby erred in failing to exercise its discretion to consider imposing concurrent sentences. This argument lacks merit for two reasons. First, the point was waived because there was no objection made to the consecutive sentencing. See Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). Second, appellant takes the judge’s statement completely out of context. The judge did say that he believed it was “incumbent on this Court to attempt to put into effect what it believes is their intentions and what is best for the protection of the community,” but this was in reference to trial counsel’s request to allow appellant to go home on an electronic monitor pending appeal and had nothing to do with the consecutive sentencing.
GLADWIN and KINARD, JJ., agree.