Britt v. State

Cite as 2015 Ark. App. 456

ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-15-211

J’DONTA DELMARCO BRITT Opinion Delivered SEPTEMBER 9, 2015

APPELLANT APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT
V. [NO. CR-2013-1212-1]

HONORABLE WILLIAM A. STOREY,
STATE OF ARKANSAS JUDGE
APPELLEE
AFFIRMED; MOTION GRANTED;
REMANDED FOR CORRECTION
OF SENTENCING ORDER

DAVID M. GLOVER, Judge

J’Donta Britt was convicted by a Washington County jury of being an accomplice to

aggravated robbery, for which he received a thirty-year sentence in the Arkansas Department

of Correction, and fleeing, for which he was sentenced to thirty days1 in the county jail and

fined $500, with the sentences to be served concurrently. Pursuant to Anders v. California, 386

U.S. 738 (1967), and Rule 4-3(k) of the Rules of the Arkansas Supreme Court and Court of

Appeals, Britt’s counsel has filed a motion to withdraw on the grounds that the appeal is

wholly without merit. Counsel’s motion was accompanied by a brief referring to everything

in the record that might arguably support an appeal, including a list of all rulings adverse to

Britt made by the trial court on all objections, motions, and requests made by either party,

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The sentencing order erroneously indicates that Britt was sentenced to thirty
months on the fleeing conviction when in fact he was sentenced to thirty days.
Cite as 2015 Ark. App. 456

with an explanation as to why each adverse ruling is not a meritorious ground for reversal.

The clerk of this court furnished Britt with a copy of his counsel’s brief and notified him of

his right to file pro se points; Britt did not file any points.

The evidence revealed that on June 18, 2013, Britt and two other individuals

approached the victim of the aggravated robbery, Jose Alvarez, at the Brookhaven apartment

complex in Springdale, Arkansas, and beat and kicked Alvarez to the point of

unconsciousness. Dr. John Johnson, the physician who treated Alvarez when he arrived at

the emergency room of Northwest Medical Center in Springdale, testified that Alvarez had

a subdural hematoma, which caused part of his brain to be deprived of oxygen; multiple skull

and facial fractures; rare bilateral first-rib fractures; and his sinuses were full of blood and

draining down his throat. Dr. Johnson did not expect Alvarez to live. Alvarez was

transported to Springfield, Missouri, via helicopter due to his neurological needs. Dr. Johnson

testified that Alvarez left Springdale in a medically induced coma, on a ventilator, and fully

paralyzing; he was surprised to learn that Alvarez survived his injuries.

Paul Simpson, a social worker at the Springfield hospital, testified that Alvarez

underwent brain surgery to alleviate the pressure on his brain, was dependent on a ventilator

for six weeks, and left the hospital thirteen months after he was admitted, confined to a

wheelchair with limited movement and little control of his right side. He testified that

Alvarez was unable to remember the last ten years of his life—including living in Arkansas or

his girlfriend with whom he lived in Arkansas—and that Alvarez would need twenty-four-

hour care for the rest of his life.

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Rick Frisby, a detective who investigated the incident, testified he visited Alvarez six

or seven months after the assault, and that Alvarez believed he was in Mexico and had been

injured by a horse. Frisby testified Alvarez was gaunt, confined to a wheelchair, and unable

to walk; when he shook Alvarez’s hand, Alvarez had to open his fingers one by one and use

his left hand to pick up his right hand and extend it to Frisby.

At the close of the State’s case, Britt’s counsel moved for directed verdict on both

counts. As to aggravated robbery, Britt’s counsel argued that the injury did not rise to the

level required by the statute. As to the fleeing offense, Britt’s counsel argued that Britt did

not know that the police were after him until they confronted him at the apartment complex,

and he then complied. Both motions were denied by the trial court. The defense rested

without calling any witnesses. The jury then convicted Britt of both offenses.

The test for determining the sufficiency of the evidence is whether the verdict is

supported by substantial evidence, or evidence that is of sufficient certainty to compel a

conclusion one way or the other and pass beyond mere speculation and conjecture. Stewart

v. State, 2010 Ark. App 323, 374 S.W.3d 811. When reviewing a challenge to the sufficiency

of the evidence, all of the evidence, including that which may have been inadmissible, is

considered in the light most favorable to the State. Id.

Arkansas Code Annotated section 5-12-103(a)(3) (Repl. 2013) provides that a person

commits aggravated robbery if he commits robbery2 as defined in § 5-12-102, and inflicts or

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Arkansas Code Annotated section 5-12-102(a) (Repl. 2013) provides, “A person
commits robbery if, with the purpose of committing a felony or misdemeanor theft or
resisting apprehension immediately after committing a felony or misdemeanor theft, the

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Cite as 2015 Ark. App. 456

attempts to inflict death or serious physical injury upon another person. Arkansas Code

Annotated section 5-1-102(21) (Repl. 2013) defines “serious physical injury” as “physical

injury that creates a substantial risk of death or that causes protracted disfigurement, protracted

impairment of health, or loss or protracted impairment of the function of any bodily member

or organ.” In his directed-verdict motion, Britt’s counsel argued that Alvarez’s injuries did

not rise to the level of “serious physical injury.” We disagree. The State did indeed present

evidence that Alvarez suffered serious physical injury when he was attacked. As a result of the

attack, Alvarez had little control over his right side, suffered partial memory loss, was confined

to a wheelchair, and will require constant care for the rest of his life. The trial court did not

err in denying Britt’s motion for a directed verdict with regard to the aggravated-robbery

offense.

Likewise, the trial court did not err in refusing to direct a verdict in Britt’s favor on the

offense of fleeing. Arkansas Code Annotated section 5-54-125(a) (Supp. 2013) provides, “If

a person knows that his or her immediate arrest or detention is being attempted by a duly

authorized law enforcement officer, it is the lawful duty of the person to refrain from fleeing,

either on foot or by means of any vehicle or conveyance.” The State entered into evidence

Britt’s statement to Detective Frisby. In it, Britt stated that after they robbed Alvarez, he took

Alvarez’s backpack to the car, and when the police pulled up, he ran. Officer Chad Niccum

person employs or threatens to immediately employ physical force upon another person.”
In his motion for directed verdict, Britt made no argument that he had not committed a
robbery, only that Alvarez had not suffered the requisite injury to constitute aggravated
robbery.

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of the Springdale Police Department, who responded to a 911 call regarding the incident,

testified that he found Britt and another man sitting below a culvert in a drainage area at the

apartment complex. Officer Niccum stated that Britt did not comply with his commands,

Britt continued to walk toward him, and then Britt began to circle him. Britt got down on

the ground only when Officer Niccum threatened to taser him if he did not do so. We find

no error in the denial of Britt’s motion for directed verdict with regard to the fleeing charge.

The only other ruling adverse to Britt during the trial was when the State was

introducing items found in Alvarez’s car, specifically a headlamp. When Britt’s counsel

objected on the basis of relevance, the State countered that because Alvarez was not testifying

at trial, they were attempting to personalize him by showing a few of his personal items. The

trial court overruled the objection, stating that it believed the item was relevant.

We find no reversible error in this ruling. “Relevant evidence” is “evidence having

any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.” Ark.

R. of Evid. 401. Circuit courts have wide discretion with regard to evidentiary

determinations, and such determinations will not be reversed absent an abuse of that

discretion. Smith v. State, 354 Ark. 226, 118 S.W.3d 542 (2003). Even if an abuse of

discretion is shown, in order to mandate reversal, there must also be a showing that the

appellant suffered prejudice as a result of the evidentiary determination. Here, the evidence

was relevant to help explain who the victim was, as Alvarez did not testify at trial.

Furthermore, Britt cannot show how he was prejudiced by the admission of the headlamp

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into evidence.

From our review of the record and the brief presented to this court, Britt’s counsel has

complied with the requirements of Rule 4-3(k) of the Rules of the Arkansas Supreme Court

and the Court of Appeals. Counsel’s motion to be relieved is granted and Britt’s convictions

are affirmed.

As noted earlier, the sentencing order indicates that Britt was sentenced to thirty

months’ incarceration on the fleeing conviction when in reality he was sentenced to thirty

days. We therefore remand to the circuit court for correction of the sentencing order. See

DeShazier v. State, 2014 Ark. App. 471.

Affirmed; motion granted; remanded for correction of sentencing order.

HARRISON and KINARD, JJ., agree.

Tim Buckley, for appellant.

No response.

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