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Marbley v. State

Court of Appeals of Arkansas, Division I

December 11, 2019



          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 ...

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