Harrison v. State

Cite as 2017 Ark. App. 580

ARKANSAS COURT OF APPEALS

DIVISION IV
No.CR-16-820

Opinion Delivered: November 1, 2017

LORENZO HARRISON APPEAL FROM THE ST. FRANCIS
APPELLANT COUNTY CIRCUIT COURT
[NO. 62CR-09-294]
V.
HONORABLE RICHARD L.
PROCTOR, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Lorenzo Harrison appeals after he was convicted by a St. Francis County

jury of murder in the first degree and possession of a firearm by certain persons. He was

sentenced to serve 300 months’ imprisonment for murder in the first degree and 60 months’

imprisonment for possession of a firearm by certain person, both to be served concurrently.

On appeal, appellant contends that (1) the trial court’s denial of his motion to sever resulted

in prejudicial error; (2) the trial court erred in denying his motions for directed verdict as to

the offense of murder in the first degree; and (3) the trial court erred in refusing to submit

his proffered jury instruction on the “choice of evils” defense. We affirm.

On July 4, 2009, appellant shot the victim, Joe Evans (Joe), during a “block party”

in Hughes, Arkansas. Appellant was later arrested and charged with murder in the first

degree, a Class Y felony, under Arkansas Code Annotated section 5-10-102 (Repl. 2013),

and with possession of firearm by certain persons, a Class D felony, under Arkansas Code
 Cite as 2017 Ark. App. 580

Annotated section 5-73-103. A jury trial was held on August 5–8, 2015, and the following

facts were introduced at trial.

There was testimony that on the day of the incident, the victim, Joe Evans; his

brother, Roosevelt Evans (Roosevelt); and his cousin, Tavarious Speed (Speed) were all

together and planning to attend the block party. The three men went to a nearby liquor

store; Joe and Roosevelt went inside the store, but Speed stayed outside. Vanessa Harrison

(Vanessa), appellant’s wife, was also in the liquor store with other women. While Roosevelt

and Joe were inside, Joe got into a heated verbal argument with Vanessa. Roosevelt testified

that as Vanessa and the other women were leaving the store, Vanessa said she was going to

call her husband, appellant, to get him to do something to Joe.

Shortly thereafter, Roosevelt and Joe left the liquor store and were joined by Speed.

As the three men were walking around a corner en route to the block party, appellant pulled

up and got out of his car with a gun. Roosevelt and Speed each testified that appellant

pointed and fired the gun at Joe and that Joe ran away. Speed testified that he was then hit

in the head by someone with a gun and was “knocked out.” Roosevelt testified that after

Joe ran away, appellant pursued him and continued to shoot at him. Roosevelt followed

and remained within twenty feet of the pursuit. At some point, appellant caught up with

Joe. According to Roosevelt, at that point, Joe was facing appellant with his hands up

begging for him to not shoot, but appellant shot him. Appellant left, and Roosevelt ran to

his brother’s aid, picked him up, and carried him to a nearby car to take him to a hospital.

An ambulance was called, and at some point between Hughes and West Memphis, the car

was met by an ambulance. Joe was transferred to the ambulance and transported to a hospital

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in Memphis, Tennessee. However, Joe died as a result of his injuries en route to the

hospital. Dr. Frank Peretti testified that Joe had been shot twice, the fatal shot having been

in the abdomen.

After the State rested its case, appellant moved for a directed verdict on the charge

of murder in the first degree. Appellant specifically argued that the State failed to prove that

he had purposely caused the death of the victim and that Roosevelt’s testimony was

inconsistent. The trial court denied the motion.

There were two other eyewitnesses to the incident who testified for the State.

Tamara Robinson (Robinson) and Roslyn Rucker (Rucker) testified that they were in a

car approaching the block party when they saw appellant cross the street in front of them

and walk toward Joe with a gun pointed at him. They testified that Joe backed away from

the situation with his hands up in the air. Rucker further testified that she saw Joe mouth

the words “put the gun down. Don’t shoot me.” Seconds later, appellant fired his gun

toward Joe. Robinson and Rucker testified that they saw Joe turn and run and that appellant

chased him. Robinson and Rucker lost sight of appellant and Joe. After they drove around

the block, Robinson and Rucker saw Roosevelt carrying Joe to a nearby car.

There were two other witnesses to the incident who testified for appellant. Vanessa,

appellant’s wife, and her sister, Felicia McDonald (Felicia), testified to a different version of

events. Vanessa and Felicia testified that they were in the liquor store with Joe and Speed.

Vanessa testified that she did not see Roosevelt in the store. Vanessa and Felicia testified

that Joe confronted Vanessa and threw ice at her while they were in the store. After they

left and walked around the block, they ran back into Joe and Speed. At that point, Joe

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threw some type of a firework at Vanessa. The women testified that Joe and Speed knocked

Vanessa to the ground and punched her repeatedly. Vanessa testified that she was hit in the

side, back, and face. Vanessa further testified that appellant arrived during the attack,

screamed at the men to get off of her, fired a warning shot, hit Speed in the back of the

head with the pistol, and began tussling with Joe. Vanessa testified that while the men were

fighting, Felicia grabbed her and that they left the scene. Felicia testified somewhat

differently in that she said she never saw appellant and that she simply grabbed Vanessa and

took her home as soon as she could get Vanessa away from Joe and Speed. Felicia

additionally stated that she called the police to report the incident.

Lieutenant Tommy Watlington responded to Felicia’s call and took Vanessa’s

statement. Lieutenant Watlington testified that he did not see any physical signs that Vanessa

had been involved in a fight and confirmed that he did not call for any medical assistance.

After the appellant rested, he renewed his motion for a directed verdict, and the trial

court denied his motion.

The State then called Chief Deputy Gene Wingo as a rebuttal witness. Chief Deputy

Wingo testified that he went to appellant’s home to interview him the day after the incident.

Vanessa had told him that she did not know the location of her husband. However, after

searching the home with permission, appellant was located in the attic.

At the conclusion of the State’s rebuttal evidence, appellant did not renew his motion

for a directed verdict. The jury found him guilty of both charges. Appellant waived jury

sentencing and, in agreement with the State, accepted an aggregate term of twenty-five

years’ imprisonment. This appeal followed.

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I. Sufficiency of the Evidence

Although appellant does not address the denial of his motion for directed verdict

until his second point on appeal, we must address such a challenge first for purposes of

double jeopardy. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Appellant does not

contest the sufficiency of the evidence to support his conviction for possession of a firearm

by certain persons; rather, he argues that the evidence was insufficient to support his

conviction for murder in the first degree. Appellant more specifically argues that the

evidence was insufficient to prove that he purposely caused the death of victim. The State

responds that appellant’s challenge is not preserved for review on appeal, and we agree.

Arkansas Rule of Criminal Procedure 33.1 (2016) requires that an appellant move

for a directed verdict at the close of the State’s evidence and again at the close of all the

evidence, and that the failure to do so waives a challenge to the sufficiency of the evidence

on appeal. See Dickey v. State, 2016 Ark. 66, 483 S.W.3d 287; Flowers v. State, 362 Ark.

193, 208 S.W.3d 113 (2005). In Dickey, our supreme court specifically held that the failure

to renew a motion for directed verdict after the close of the State’s rebuttal testimony waived

the issue of sufficiency of the evidence. Id. Our supreme court further explained that a

renewal is more than a matter of mere form; it goes to the substance of the evidence arrayed

against the criminal defendant. Id. Here, although the appellant initially made his motion

for a directed verdict, he failed to renew his motion after the close of the State’s rebuttal

testimony. Thus, appellant failed to preserve his challenge to the sufficiency of the evidence

for appellate review.

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II. Motion to Sever

Appellant filed a pretrial motion to sever his count for murder in the first degree

from his count for possession of a firearm by certain persons. In his motion, he argued that

the charges against him were not “part of a single scheme or plan” as required under

Arkansas Rule of Criminal Procedure 22.2(a). After a hearing, in which appellant

additionally argued that he would be prejudiced because the jury would be presented with

evidence that he had a prior criminal conviction, the trial court denied the motion.

Appellant argues on appeal that this was error.

A defendant has a right to a severance when two or more offenses have been joined

solely on the ground that they are of the same or similar character. Watkins v. State, 2009

Ark. App. 124, 302 S.W.3d 635. Otherwise, granting or refusing a severance is within the

discretion of the trial court, and the decision by the trial court will not be disturbed absent

an abuse of discretion. Id. A severance motion may be denied if the two offenses were part

of a single scheme or plan or if both offenses require the same evidence. Id.

The issue of whether a possession-of-a-firearm-by-certain-persons charge should be

severed from a murder charge is well settled. In Ferrell v. State, 305 Ark. 511, 810 S.W.2d

29 (1991), our supreme court explained that while possession of a firearm is a common

element with murder perpetrated by means of a firearm, the introduction of a conviction of

a prior felony as required for a possession-of-a-firearm-by-certain-persons charge has

nothing to do with the elements of proof required for murder in the first degree. Moreover,

the presentation of a prior conviction to the jury runs the risk of prejudicing the trial of the

joined offense to some degree. Id. Therefore, because the two offenses were not part of a

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single scheme or plan nor did they require the same evidence, the trial court erred in refusing

to sever the two charges.

In addition to error, however, appellant must show some form of prejudice before

we can disturb the ruling of the trial court. Watkins, supra. Our supreme court has declined

to conclude that the joinder of a possession-of-a-firearm-by-certain-persons charge along

with another felony charge constitutes prejudice by that fact alone in all instances. Sutton v.

State, 311 Ark. 435, 844 S.W.2d 350 (1993). Instead, such cases are to be examined

individually to determine if the presumption of prejudice has been overcome and whether

the trial court abused its discretion. Watkins, supra. Our supreme court has previously held

that the error was not prejudicial with the existence of one or more overriding factors,

including (1) the overwhelming evidence of guilt; (2) cross-examination of the defendant

on the prior conviction; and (3) a limiting instruction to the jury. Sutton, supra.

Here, two of the overriding factors were present. Unlike in Sutton, where the

evidence of guilt was characterized as “weak,” there was direct evidence of appellant’s guilt

of murder in the first degree. Roslyn Rucker, Tamara Robinson, Tavarious Speed, and

Roosevelt Evans testified to having observed appellant shoot directly at the victim. Rucker,

Robinson, and Roosevelt testified that they saw appellant chase the victim. Additionally,

Roosevelt testified that he saw appellant shoot and kill the victim. Therefore, there was

overwhelming evidence of guilt. See Ferrell, supra (holding that the testimony of three

eyewitnesses constituted overwhelming evidence); Watkins, supra (holding that direct

evidence of guilt in the form of testimony in addition to circumstantial forensic evidence

was sufficient). Also, another Sutton factor was present. The trial court specifically

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instructed the jury that it “should not take the proof that the defendant has a felony

conviction as proof of his guilt of murder.” Therefore, we hold that the error by the trial

court was not prejudicial to appellant under the circumstances of this case and affirm the

trial court’s ruling.

After the trial court had denied appellant’s motion to sever the counts, the State

introduced into evidence a certified copy of a statement executed by appellant in the prior

offense pleading guilty to robbery and theft by receiving. Appellant renewed his objection

and moved for a mistrial. However, appellant’s motion was denied. On appeal, appellant

states as subheading b under this point on appeal that “[t]he trial court erred by denying the

Appellant’s motion for mistrial after the prosecution introduced in front of the jury a

certified copy of a police statement of the Appellant pleading guilty to prior offense.”

Although he outlines that the trial court denied his motion for mistrial, appellant fails to

provide any argument, citation to any authority, or prayer for relief. We do not consider

arguments that are unsupported by convincing argument or sufficient citation to legal

authority. Armstrong v. State, 366 Ark. 105, 233 S.W.3d 627 (2006); Watson v. State, 2015

Ark. App. 721, 478 S.W.3d 286. Thus, we affirm on this point on appeal.

III. “Choice of Evils” Jury Instruction

Appellant finally argues that the trial court erred in failing to give his proffered AMI

Crim. 2d 702 “choice of evils” jury instruction. This defense is set forth in Arkansas Code

Annotated section 5-2-604(a)(1), which provides that an offense is justifiable when the

“conduct is necessary as an emergency measure to avoid an imminent public or private

injury” and “[a]ccording to ordinary standards of reasonableness, the desirability and urgency

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of avoiding the imminent public or private injury outweigh the injury sought to be

prevented by the law proscribing the conduct.” Appellant argues that he was entitled to the

instruction as a defense to the possession-of-a-firearm-by-certain-persons charge because he

received an alarming phone call from his wife that she was being verbally assaulted and

needed to possess a firearm to “rescue her from . . . a perilous situation.”

We review a trial court’s decision to give or reject a jury instruction under an abuse-

of-discretion standard. Clark v. State, 374 Ark. 292, 287 S.W.3d 567 (2008). A defendant

is entitled to a jury instruction when it is a correct statement of law and there is some basis

in the evidence to support giving the instruction. Prodell v. State, 102 Ark. App. 360, 285

S.W.3d 673 (2008). When the defendant has offered sufficient evidence to raise a question

of fact concerning a defense, the instructions must fully and fairly declare the law applicable

to that defense; however, there is no error in refusing to give a jury instruction where there

is no basis in the evidence to support the giving of the instruction. Id. On appeal, our role

is not to weigh the evidence to determine if the justification instruction should have been

given, but rather we limit our consideration to whether there is any evidence tending to

support the existence of a defense. Id. To preserve for appeal an objection to an instruction,

the appellant must proffer the proposed instruction to the trial court, include it in the record

on appeal, and abstract it to enable the appellate court to consider it. Sipe v. State, 2012

Ark. App. 261, 404 S.W.3d 164. Furthermore, it is up to the movant to obtain a ruling in

order to preserve an issue for appeal. Hamm v. State, 301 Ark. 154, 782 S.W.2d 577 (1990).

Here, appellant failed to obtain a ruling from the trial court. When jury instructions

were discussed, appellant requested AMI Crim. 2d 702, among other instructions. The trial

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court stated that it was setting aside instruction 702 to turn its attention to AMI Crim. 2d

704. However, the trial court never revisited the instruction, nor did appellant request a

ruling. Appellant even acknowledged that the trial court failed to reject the instruction

when he proffered the instruction after the jury had already found him guilty and had been

dismissed but before the record had been closed. Because appellant failed to obtain a ruling,

he failed to preserve this issue on appeal for our review. See Hamm, supra. Thus, we affirm

appellant’s convictions.

Affirmed.

GRUBER, C.J., and MURPHY, J., agree.

Alvin Simes, for appellant.

Leslie Rutledge, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.

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