Martin v. State

John B. Robbins, Judge.

Appellant John Douglas Martin was convicted of first degree murder and kidnapping for which he was sentenced to consecutive terms of twenty years and ten years, respectively. Martin now appeals, arguing that the evidence is insufficient to support the convictions. Alternatively, Martin contends that the trial court erred in refusing to instruct the jury on the lesser included offense of second degree murder. We find no error and affirm.

The only direct evidence against Martin came through testimony given by his nephew, Adell Henry. Henry testified that he and Martin traveled in Martin’s gold Cadillac from their home in Lawton, Oklahoma to Little Rock, arriving on the evening of October 11, 1991. While Martin slept in his car that night, Henry visited an old girlfriend and stayed until the morning. When Henry returned to the vehicle, Martin got in the driver’s seat and drove to Philander Smith College. He got out of the car and met with his estranged wife, Felicia. Felicia was employed in the cafeteria at Philander Smith. She entered the building where she worked, came back out, and talked to Martin again. Some time thereafter, Martin opened the back passenger door and pushed her into the car, laying on top of her. Martin instructed Henry to drive off. Henry complied. While driving, Henry heard Felicia choking and gasping for air. Martin then told Henry to pull over, and Martin got in the driver’s seat and drove to Fourche. He stopped the car, handed Henry some gloves, and asked Henry to help him remove Felicia from the car. They put her body in some weeds, and proceeded back to Oklahoma. Later that day, Felicia’s body was discovered in the area described by Henry.

Martin’s first argument for reversal is that sufficient evidence does not support the verdicts because the accomplice testimony of Adell Henry is inadequately corroborated. Arkansas Code Annotated § 16-89-111(e)(1) (1987) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.

The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the defendant with the commission of the crime. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982). In other words, the test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). On appeal, it is this court’s duty to determine whether there is substantial evidence to support the jury’s finding that the corroborating evidence was sufficient. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).

We will not consider the merits of Martin’s argument because this point has not been preserved for appeal. The sufficiency of the evidence is challenged by a motion for directed ver-diet. Arkansas Rules of Criminal Procedure 36.21(b) provides the following:

Failure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.

The above rule has been strictly construed, and the supreme court has consistently stated that the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal. Donald v. State, 310 Ark. 197, 833 S.W.2d 770 (1992). In Donald, the appellant renewed his motion for directed verdict at the close of the evidence but did not obtain a ruling. As a result, his sufficiency argument was not considered on appeal. In the instant case, Martin moved for a directed verdict after the state rested on the ground that no substantial evidence connected him with the commission of the offense except for the testimony of the accomplice, Adell Henry. The court denied that motion. After calling one witness, the defense rested. The court then inquired “show the motions renewed?” and counsel for Martin replied “yes.” The above exchange does not amount to a motion for directed verdict, and even if it does the defendant failed to obtain a ruling on the motion. Furthermore, even if counsel’s answer “yes” to the court’s inquiry constituted a motion for directed verdict, it falls far short of meeting the requirement that the moving party apprise the trial court of the specific basis on which the motion is made. Brown v. State, 316 Ark. 724, 875 S.W.2d 828 (1994), and see Brown v. State, 315 Ark. 466, 869 S.W.2d 9 (1994). For these reasons, we do not address the sufficiency argument on appeal.

Martin’s remaining argument is that the trial court erred in not instructing the jury on the lesser included offense of second degree murder. If there is any rational basis upon which the jury could have found the accused guilty of a lesser crime, it is reversible error to refuse to give a correct instruction on that lesser crime. Hill v. State, 33 Ark. App. 135, 803 S.W.2d 935 (1991). In the case at bar, Martin relied on the defense of com-píete denial in asserting that he was not even in the state of Arkansas on the date of Felicia’s death. Where the appellant relies on the defense of complete denial there is no rational basis for giving instructions on lesser included offenses and the trial court is correct to refuse such instructions. Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993). In Vickers, the appellant was convicted of first degree murder and was not allowed a jury instruction regarding second degree murder because he completely denied any knowledge or involvement with the fatal shooting at issue. Since Martin completely denied any involvement, there was no rational basis for instructing the jury on second degree murder in this case. Thus, it was not error for the trial court to deny Martin’s request for an instruction regarding this lesser included offense.

Affirmed.

Jennings, C.J., agrees. Mayfield, J., concurs.