Moore v. State

Vonnie L. MOORE v. STATE of Arkansas

CR 97-598                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered November 13, 1997


1.   Motions -- directed verdict -- requirement for preservation of sufficiency
     issue regarding lesser-included offense. -- To preserve for appeal the
     issue of sufficiency of the evidence to support a conviction
     of a lesser-included offense, a defendant's motion for
     directed verdict must address the elements of the lesser-
     included offense.  

2.   Motions -- directed verdict -- conviction affirmed where motion did not
     address elements of lesser-included offense. -- Where appellant's
     directed-verdict motion addressed only whether the victim was
     threatened by, or perceived the threat of, a deadly weapon and
     did not address any of the elements of robbery, the offense of
     which appellant was convicted, the supreme court affirmed the
     conviction.

3.   Criminal law -- sentencing -- trial court exceeded authority -- aggregate
     sentence illegal -- sentence modified. -- Where the trial court
     lacked the authority to impose an aggregate sentence of more
     than one year for the two misdemeanor offenses of which
     appellant was convicted, and where the sentence was also
     illegal because it purported to run appellant's misdemeanor
     sentences consecutively with his felony sentences, the supreme
     court modified appellant's sentence to reduce the total
     sentence for the two misdemeanor theft convictions to one year
     to be served concurrently with the life and forty-year
     sentences.


     Appeal from Pulaski Circuit Court; David Bogard, Judge;
affirmed as modified.
     Chris Tarver, for appellant.
     Winston Bryant, Att'y Gen., by:  Mac Golden, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.
     Vonnie L. Moore was alleged to have robbed cashiers at two
grocery stores -- one on February 26, 1996, and the other on
February 27, 1996.  He was charged with two counts of aggravated
robbery and two counts of misdemeanor theft.  The judgment and
commitment order of record inaccurately shows that Mr. Moore was
convicted of two aggravated robberies, both occurring on February
27, 1996.  The trial transcript shows that the jury found Mr. Moore
guilty of aggravated robbery and theft with respect to the robbery
that occurred on February 27, 1996 (Count 2).  As to the February
26, 1996, event (Count 1), however, Mr. Moore was found guilty of
the lesser-included offense of robbery and of misdemeanor theft.  
     Mr. Moore was sentenced as an habitual offender to serve
consecutive terms of life imprisonment for aggravated robbery,
forty years' imprisonment for robbery, and one year in the county
jail for each of the misdemeanor thefts.  He appeals only the
forty-year sentence received for the robbery on Count 1 and asserts
that the evidence was insufficient and should not have been allowed
to go to the jury.  We affirm the conviction because Mr. Moore's
motion for directed verdict challenging the sufficiency of the
evidence concerned only the charge of aggravated robbery of which
he was not convicted.  The sentence is modified, however, to limit
the total sentence for the misdemeanor thefts to one year, which is
to be served concurrently with the felony sentences.
     At the trial, Jamal Williams, the grocery-store clerk
victimized in the February 26 robbery, was unable to identify Mr.
Moore as the culprit; however, he had done so earlier upon viewing
a photographic lineup.  Mr. Williams testified that he was a
cashier at the store robbed on February 26.  The robber approached
him at the register and asked for a pack of cigarettes.  When Mr.
Williams told the robber what he owed, the robber reached in his
pocket and handed Mr. Williams a note that said, "This is a
robbery.  Give me all your money."  Mr. Williams testified that the
robber said only that he did not want food stamps.  The robber
placed his hand in his coat pocket, and Mr. Williams said that he
saw something "bulging out" toward him from the pocket where the
robber's hand was and that he felt threatened and scared.  He gave
the robber all the cash from the register.  Mr. Williams testified
that he did not know what was in the robber's pocket, but he
believed the "bulge" was a gun based on the way the robber had his
hand in his pocket.

                1. Sufficiency of the evidence  
     Robbery is defined in Ark. Code Ann.  5-12-102(a) (Repl.
1993), in significant part, as follows: "A person commits robbery
if, with the purpose of committing a felony or misdemeanor theft
... he employs or threatens to immediately employ physical force
upon another."  One who commits robbery is guilty of aggravated
robbery if one "is armed with a deadly weapon or represents by word
or conduct that [one] is so armed;...."  Ark. Code Ann.  5-12-
103(a)(1) (Supp. 1995).  
     The motion for a directed verdict at the trial was as follows:

     [Defense Counsel]: ... I would move for a directed verdict as
     to Count One of the information.  The State has not met its
     burden, insufficient evidence.  I believe Mr. Williams is
     charged [sic] as a victim in that count, aggravated robbery. 
     I believe his testimony was that the defendant came into the
     store, presented a note written on a paper towel or a napkin
     or something to that effect, placed it upon the counter, he
     looked at the note.  Once he realized that he was serious,
     then he handed the money to him.  He then changed his
     testimony a little bit in terms of he said that the defendant
     had his hand in his pocket, he saw a bulge, and it was just
     his personal feelings.
     The Court:     Thought he had a gun.
     [Defense Counsel]:--that he had a gun.  There was no
     indication that there was any conduct on the part of the
     defendant by words or, as I said, conduct that he had a
     weapon.

     The motion questioned only the sufficiency of the evidence to
show that Mr. Moore was armed with a deadly weapon or represented
himself to be armed with a deadly weapon.  It thus questioned only
the element that allegedly made the act aggravated robbery rather
than robbery.
     To preserve for appeal the issue of sufficiency of the
evidence to support a conviction of a lesser-included offense, a
defendant's motion for directed verdict must address the elements
of the lesser-included offense.  Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997); Jordan v. State, 323 Ark. 628, 917 S.W.2d 164
(1996).  Mr. Moore's motion addressed only whether Mr. Williams was
threatened by, or perceived the threat of, a deadly weapon.  As the
motion did not address any of the elements of robbery, the offense
of which Mr. Moore was convicted, we affirm the  conviction.

                    2. Misdemeanor sentences
     According to Ark. Code Ann.  5-4-403(c) (Repl. 1993),

          The power of the court to order that sentences run
     consecutively shall be subject to the following limitations:
          (1)  A sentence of imprisonment for a misdemeanor and a
     sentence of imprisonment for a felony shall run concurrently,
     and both sentences shall be satisfied by service of sentence
     for a felony; and
          (2)  The aggregate of consecutive terms for misdemeanors
     shall not exceed one (1) year.

The Trial Court thus lacked the authority to impose an aggregate
sentence of more than one year for the two misdemeanor offenses. 
The sentence was also illegal in that it purported to run the
misdemeanor sentences consecutively with the felony sentences. 
Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).             
     Mr. Moore's sentence is modified to reduce the total sentence
for the two misdemeanor theft convictions to one year to be served
concurrently with the life and forty-year sentences.

                   3.  Ark. Sup. Ct. R. 4-3(h)
     In accordance with Ark. Sup. Ct. R. 4-3(h), the record has
been reviewed for erroneous rulings prejudicial to Mr. Moore, and
none has been found.
     Affirmed as modified.