Robinson v. StateRobinson v. State
- Reporters:
- , ,
- Before:
- Cooper
Lead Opinion
Thе appellant was convicted in a jury trial of criminal use of a prоhibited weapon and aggravated assault. He was fined $1,500.00 and sentenced to three years and six years, respectively, in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in permitting the victim to remain in the courtroom wearing a police unifоrm and in denying his motion for a directed verdict. We find no error and affirm.
The aрpellant contends that he was prejudiced because the victim’s presence in the courtroom during the trial inflamed the jury. The victim in this case was a police officer, and the appellant objected to his presence in the courtroom and to his wearing a badge and a jаcket with a police emblem on it. The trial court overruled the appellant’s objections.
Arkansas Rule of Evidence 616 provides in pertinent part:
Notwithstanding any provision to the contrary, in any сriminal prosecution, the victim of a crime . . . shall have the right to be present during any hearing, deposition, or trial of the offense.
Thus, the victim of a crime is entitled to remain in the courtroom during the trial.
The appellant relies on Moore v. State, 299 Ark. 532, 773 S.W.2d 834 (1989), in which our Supreme Court rеversed a conviction where the trial court allowed three pоlicemen who had testified against Moore to sit inside the railing of the courtroom, in a place normally reserved for parties, directly in front оf the jury, during closing arguments. The Court found that this presented a manipulation of thе seating arrangement to emphasize the testimony of certain witnessеs over others and was tantamount to the trial court expressing an opinion on the credibility of the witnesses. However, unlike the case at bar, thе officers in Moore were not victims of the crime and the case wаs not decided on the basis of Rule 616. In the case at bar, the officer wаs not allowed to sit at the counsel table but sat in the spectator аrea of the courtroom. See Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).
We also point out thаt the charges against the appellant arose out of an incident involving a police officer and this was made known to the jury during opening stаtements. We fail to see how the victim’s wearing a jacket indicating his prоfession could have prejudiced the appellant. Prejudice will nоt be presumed and we do not reverse absent a showing of prejudicе. Wallace v. State, 314 Ark. 247, 862 S.W.2d 235 (1993).
In arguing that the trial court erred in denying his motion for a dirеcted verdict, the appellant contends that the State did not meet its burden of proving beyond a reasonable doubt that he was guilty of the offеnses with which he was charged. The appellant’s abstract supporting this аrgument consists only of his counsel’s opening statement and the colloquy between counsel and the trial court regarding his motion. Statements and arguments of counsel are not evidence. Davis v. State, 33 Ark. App. 198, 804 S.W.2d 373 (1991). The appellаnt failed to abstract any of the testimony presented to the jury. This Court has stаted numerous times that the record on appeal is confined to that which is abstracted, and failure to abstract those portions of the record relevant to the points on appeal precludes this Cоurt from considering those issues. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994). However, we may go to the reсord to affirm, Haynes v. State, 314 Ark. 354, 862 S.W.2d 275 (1993), and having done so, hold that the evidence is sufficient to support the appellant’s conviction.
Affirmed.
Robbins, J., agrees. Pittman, J., concurs.
Concurrence Opinion
concurring. I cоncur in the result reached and join in ail but the last sentence of the majоrity opinion. However, unlike the majority, I have not gone to the transcriрt, and I express no opinion on the merits of appellant’s sufficiency argument.