Griffin v. State

2017 Ark. App. 400

• Court: Court of Appeals of Arkansas
• Decided: June 21, 2017
• Docket: CR-16-979
• Status: Published

Opinion

Cite as 2017 Ark. App. 400

ARKANSAS COURT OF APPEALS

DIVISION IV No.CR-16-979

Opinion Delivered: June 21, 2017

MARK DOUGLAS GRIFFIN APPEAL FROM THE FAULKNER APPELLANT COUNTY CIRCUIT COURT [NO. 23CR-15-446] V. HONORABLE CHARLES E. CLAWSON, JR., JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED; MOTION TO WITHDRAW GRANTED

KENNETH S. HIXSON, Judge

Appellant Mark Douglas Griffin appeals after he was convicted by the Faulkner

County Circuit Court of robbery, theft of property less than $1000, and interference with

emergency communication in the second degree and sentenced to serve a total of 180

months in the Arkansas Department of Correction. Appellant’s attorney has filed a no-

merit brief and a motion to withdraw as counsel pursuant to Arkansas Supreme Court Rule

4-3(k) (2016) and Anders v. California, 386 U.S. 738 (1967), asserting that this appeal is

wholly without merit. The motion is accompanied by an abstract and addendum of the

proceedings below, alleged to include all objections and motions decided adversely to

appellant, and a brief in which counsel explains why there is nothing in the record that

would support an appeal. The clerk of this court mailed a copy of counsel’s motion and

brief to appellant’s last-known address informing him of his right to file pro se points for Cite as 2017 Ark. App. 400

reversal; however, he has not done so. 1 Consequently, the attorney general has not filed a

brief in response. We grant counsel’s motion to withdraw and affirm the convictions.

Appellant was arrested after an incident that occurred at Wal-Mart on June 9, 2015.

Appellant was observed on camera taking several items while in the store. When he was

approached by two asset-protection associates, he became aggressive. Eventually, appellant

was arrested by law enforcement.

Appellant was charged by information with robbery, a Class B felony; theft of

property less than $1000, a Class A misdemeanor; interference with emergency

communication in the second degree, a Class B misdemeanor; and habitual offender.

Appellant’s bond was set at $75,000. Appellant requested that his bond be reduced four

separate times prior to trial; however, the trial court denied each request. A bench trial was

held on June 24, 2016.

Anthony Prewitt, an asset-protection associate, testified that he had observed

appellant on camera take several movies and stuff them into two sacks that he had in his

pocket. He also had seen appellant take two lighters off an end cap and conceal them in his

pocket. After appellant walked past the last point of sale in the Garden Center, Prewitt and

another asset-protection associate, Corey Garretson, approached appellant and identified

themselves. Prewitt testified that, at that point, appellant had put the movies down and

charged at them. Appellant later ended up falling, hitting a pole, and “busting his eye open.”

However, Prewitt explained that appellant had gotten up and charged again at Garretson,

1 The packet was mailed to appellant by certified mail, and a return receipt indicates that delivery was accepted. 2 Cite as 2017 Ark. App. 400

knocking Garretson down to the ground. Afterward, Officer Matthew Boyd arrived at the

scene and placed appellant in handcuffs. Prewitt estimated that appellant had taken $300 in

property.

Garretson testified that he was with Prewitt the day of the incident observing

appellant on the store cameras. He explained that he had observed appellant take several

items. Garretson further explained that he had been on the phone with the Conway Police

Department when Prewitt and he approached appellant. Garretson testified that he had told

the police dispatcher that appellant was trying to flee and that appellant was pushing him.

At one point, appellant had grabbed his phone. However, Garretson was able to

subsequently get his phone back, but appellant had pushed Garretson backwards to the

ground. Appellant was eventually arrested by Officer Boyd outside the door.

Officer Boyd testified that he had heard the dispatcher call over the radio for an

officer to assist in a suspected shoplifting incident. Officer Boyd explained that he had

observed appellant push Garretson and run approximately twenty to thirty feet away from

the door. Officer Boyd indicated that he had pursued appellant and had been able to take

him into custody.

Crystal Griffin, appellant’s wife, testified on appellant’s behalf. She testified that

appellant had experienced a traumatic-brain injury in the past and that his short-term

memory and balance were impacted. She testified that appellant was not frequently left on

his own because she “was scared he was going to do something stupid.” She further testified

that he would forget where he was.

3 Cite as 2017 Ark. App. 400

After all evidence was presented, the trial court found appellant guilty of robbery,

theft of property less than $1000, and interference with emergency communication in the

second degree and sentenced him to serve a total of 180 months in the Arkansas Department

of Correction. This appeal followed.

Appellant’s counsel explains that the only adverse rulings in this case were the

convictions themselves and the denials from the requests for bond reduction. It is well

settled that this court strictly construes Arkansas Rule of Criminal Procedure 33.1 (2016).

Grube v. State, 2010 Ark. 171, 368 S.W.3d 58. In order to challenge the sufficiency of the

evidence on appeal from a bench trial, Arkansas Rule of Criminal Procedure 33.1(b)

requires that an appellant move for a dismissal at the close of all the evidence, stating the

specific grounds therefor. McCall v. State, 2016 Ark. App. 300, 495 S.W.3d 91. A

defendant’s failure to challenge the sufficiency of the evidence at the time and in the manner

specified in Rule 33.1(b) constitutes a waiver of any question pertaining to the sufficiency

of the evidence to support the judgment. Ark. R. Crim. P. 33.1(c); Hudson v. State, 2014

Ark. App. 305. Because appellant failed to move for dismissal at the close of all evidence at

trial, he has waived any argument pertaining to the sufficiency of the evidence to support

his convictions. Therefore, any appeal challenging the sufficiency of the evidence would

be wholly without merit.

Additionally, appellant made four separate pretrial requests for a bond reduction

pending trial. However, the trial court denied each request, and there would be no merit

to an appeal from those adverse rulings. Because we affirm appellant’s convictions, the

question of his pretrial bond is moot, and this court does not decide moot issues. Davis v.

4 Cite as 2017 Ark. App. 400

State, 350 Ark. 22, 86 S.W.3d 872 (2002). Therefore, an appeal from those rulings would

be wholly without merit. Thus, from our review of the record and the brief presented, we

find that counsel has complied with the requirements of Rule 4-3(k) and hold that there is

no merit to this appeal. Accordingly, counsel’s motion to withdraw is granted, and

appellant’s convictions are affirmed.

Affirmed; motion to withdraw granted.

GRUBER, C.J., and KLAPPENBACH, J., agree.

Files & Brasuell, PLLC, by: Toney B. Brasuell, for appellant.

No response.