APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, FIFTH DIVISION [NO.
60CR-18-2449] HONORABLE WENDELL GRIFFEN, JUDGE.
Willard Proctor, Jr., P.A., by: Willard Proctor, Jr. and
Dominique King, for appellant.
Leslie
Rutledge, Att'y Gen., by: Pamela Rumpz, Senior Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge.
Drevion
Marbley appeals the order of the Pulaski County Circuit Court
finding him guilty of robbery, battery, theft of property,
and a firearms enhancement. On appeal, Marbley argues that
there was insufficient evidence to support the jury's
verdict and that the circuit court abused its discretion in
denying his motions for mistrial. We affirm.
On
April 23, 2018, Tre James locked himself out of his truck at
the Valero gas station at Rodney Parham Road and 12th Street
in Little Rock. While James was waiting for a locksmith from
Conway to assist, Marbley arrived at the gas station. James
approached Marbley to ask if he could help him get into his
locked truck. James informed Marbley that he had marijuana in
his truck, and the two exchanged telephone numbers. After
exchanging text messages on April 24, the men agreed to meet
at the Big Red gas station on 12th Street in Little Rock so
that James could sell Marbley marijuana. James took his 9mm
Ruger gun. The gun was loaded, tucked into the right side of
the driver's seat, and visible to a passenger.
Marbley
approached James's truck, and James told Marbley to get
into the vehicle. While James was "getting everything
together," he became distracted by a light coming from
the left side of the truck. When he turned to look toward the
light, he felt his gun being "pulled" from the seat
beside him. James testified that he put his right arm around
Marbley's neck. He testified that Marbley then opened the
door and that Marbley's momentum pulled him from the
truck. James heard two gunshots and realized he had been shot
in his elbow and abdomen. James testified that when he looked
up, both Marbley and his gun were gone. As a result of the
gunshot wounds, he had four surgeries and was in the hospital
for eight days.
A
witness, Eddie Lewis, testified that he was at the Big Red
gas station on April 24, 2018, and that he heard
"rustling" in a nearby truck. He testified that he
saw a man jump out of the truck and saw another man fall to
the ground yelling that he had been shot. Lewis testified
that the man who ran away had a gun in his hand.
Marbley
was charged by a felony information with aggravated robbery,
first-degree battery, theft of property, and possession of
firearms by certain persons as well as a firearms enhancement
and as a habitual offender. From January 30 through February
1, 2019, a three-day jury trial was held. After presentation
of the evidence, Marbley's directed-verdict motion was
denied. The jury found Marbley guilty of robbery, battery,
theft of property, and the firearms enhancement. The jury
specifically found that Marbley had used a firearm as a means
of committing the battery and that the theft of property did
not involve a threat of serious physical injury to any
person. After the verdict, Marbley moved to have the robbery
count dismissed. The circuit court denied his motion.
Marbley
and the State agreed on a sentence, and Marbley was sentenced
as a habitual offender to concurrent thirty-year sentences on
the robbery and battery convictions followed by a consecutive
sentence of five years on the firearm-enhancement conviction.
Because the theft-of-property conviction is a misdemeanor,
Marbley received a concurrent sentence of one year.
On
appeal, Marbley argues that the circuit court abused its
discretion when it denied his motions for mistrial based on
improper Rule 404(b) testimony and improper arguments by the
State. Additionally, Marbley asserts that the evidence was
insufficient to convict him. Because the circuit court did
not abuse its discretion when it denied the mistrial motions,
and because the evidence was sufficient to convict Marbley,
we affirm his convictions and sentences.
Although
it is his second appellate argument, we first address
Marbley's sufficiency arguments because of
double-jeopardy concerns. See Wingfield v. State,
2019 Ark.App. 111, 572 S.W.3d 434. Marbley contends that the
circuit court committed reversible error when it denied his
motion for directed verdict since there was not sufficient
evidence to sustain his convictions. We disagree.
A
motion for directed verdict at a jury trial is considered a
challenge to the sufficiency of the evidence. Cora v.
State, 2009 Ark.App. 431, at 3, 319 S.W.3d 281, 283. We
will affirm a circuit court's denial of the motion if
there is substantial evidence, either direct or
circumstantial, to support the verdict. Id.
Substantial evidence is defined as evidence forceful enough
to compel a conclusion one way or the other beyond suspicion
and conjecture. Id. When a defendant challenges the
sufficiency of the evidence to convict him, the evidence is
viewed in the light most favorable to the State, and only the
evidence supporting the verdict will be considered.
Gamble v. State, 351 Ark. 541, 545-46, 95 S.W.3d
755, 758 (2003). Finally, in considering the evidence, this
court does not assess credibility because that is a question
for the finder of fact. Woods v. State, 363 Ark.
272, 275, 213 S.W.3d 627, 630 (2005).
Marbley
asserts that James was unbelievable as a witness because he
neglected to tell the State before the trial about the
marijuana sale, he neglected to tell the police that he had
Marbley's phone number, and he did not tell the doctors
who were treating him about his marijuana use. However,
James's credibility was a fact question for the jury.
Woods, 363 ...