Feuget v. State, CA CR 11–890.

• Decision Date: 29 February 2012
• Docket Number: No. CA CR 11–890.,CA CR 11–890.
• Parties: Michael Arlie FEUGET, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 182

394 S.W.3d 310

Michael Arlie FEUGET, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 11–890.

Court of Appeals of Arkansas.

Feb. 29, 2012.

Jeffrey Marx Rosenzweig, Little Rock, for appellant.

Dustin McDaniel, Atty. Gen., by: Brad Newman, Little Rock, for appellee.

ROBERT J. GLADWIN, Judge.

[Ark. App. 1]Appellant Michael Feuget appeals his conviction on one of two charges of aggravated robbery, challenging the sufficiency of the evidence supporting the conviction. He also argues that the circuit court erred in denying his motion for a new trial based on inaccurate testimony by his psychiatrist. We affirm.

Appellant was charged with two counts of aggravated robbery, pursuant to Arkansas Code Annotated section 5–12–103 (Repl.2006), and theft of property, pursuant to Arkansas Code Annotated section 5–36–103 (Repl.2006), in connection with the robbery of Iberia Bank in Little Rock on January 15, 2010. At trial, appellant raised the affirmative defenses of mental disease or defect and involuntary intoxication. He was convicted and sentenced to a total of 180 months in the Arkansas Department of Correction pursuant to a judgment and commitment order entered on February 3, 2011. A denial of his February 8, 2011 motion [Ark. App. 2]for new trial was entered on March 9, 2011, and appellant filed a timely notice of appeal on March 10, 2011.

I. Sufficiency of the Evidence¹

A directed-verdict motion is a challenge to the sufficiency of the evidence. Hutcheson v. State, 92 Ark.App. 307, 213 S.W.3d 25 (2005). On appeal, this court reviews the evidence in the light most favorable to the State, considering only the evidence that supports the conviction. Spight v. State, 101 Ark.App. 400, 278 S.W.3d 599 (2008). This court will affirm a conviction if there is substantial evidence to support it, which is evidence of sufficient force and character that it will compel a conclusion with reasonable certainty. Id. Because a criminal defendant's intent can seldom be proved by direct evidence, it must usually be inferred from the circumstances surrounding the crime. Id. Jurors are allowed to draw upon their common knowledge and experience to infer intent from the circumstances, and it is presumed that a person intends the natural and probable consequences of his or her acts. Id. Determinations of credibility are left to the jury. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Id.

Appellant was charged with two counts of aggravated robbery, one of Clint Horne, reflected in Count 1, and one of Stephen Long, reflected in Count 2. Appellant challenges [Ark. App. 3]the sufficiency of the evidence with regard to Count 2, arguing that he committed the physical act of robbing one person, bank employee Mr. Horne, and that a second employee, Mr. Long, merely saw what was going on and handed over money as well, although no threat was made to him. Appellant argues that this is insufficient to sustain a conviction for the aggravated robbery of Mr. Long.

We disagree. Robbery, under Arkansas Code Annotated section 5–12–102 (Repl.2006), requires that, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Aggravated robbery, undersection 5–12–103(a)(2), introduces the weapon or serious physical injury component.

Appellant maintains that the evidence indicates that he did not threaten physical force on Mr. Long, as no threat was directed to Mr. Horne and Mr. Long jointly. He cites Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983), in which the defendant was charged with four counts of aggravated robbery at a restaurant. He took items from the manager and two patrons. Two counts pertained to the manager, one involving his own property and one involving the restaurant. The supreme court set aside one of the two convictions for robbing the manager. Our supreme court explained:

[U]nder prior law robbery consisted of the felonious taking of money or other valuable thing from the person of another by force or intimidation. That definition put the primary emphasis upon the taking of property. But the Code redefines robbery to shift the focus of the offense from the taking of property to the threat of physical harm to the victim. As the Commentary states: “One consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take [Ark. App. 4]place.” Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979). Ownership is not a necessary element of proof for aggravated robbery. The aggravated robbery was complete with the threat of physical harm and the intent to commit theft. Therefore, the same proof was required for each of the counts of robbery involving Matthew Helfrich, and the entry of conviction on both counts is prohibited by Ark. Stat. Ann. § 41–l05(1)(a) and (2)(a) (Repl.1977).

Id. at 113–14, 661 S.W.2d at 391–92. Here, as in Mitchell, appellant notes that the threat against Mr. Horne just happened to be viewed by Mr. Long.

In cases where the accused makes no verbal representation that he is armed, the focus is on what the victim perceived concerning a deadly weapon. See Clemmons v. State, 303 Ark. 354, 796 S.W.2d 583 (1990). Mr. Long testified that he was the bank's branch manager and that he was behind the teller line when appellant came into the bank. Mr. Horne and Mary Millerd were also behind the teller line. When appellant came into the bank, he handed bags to both Mr. Horne and Ms. Millerd. Testimony indicated that Ms. Millerd “froze,” and that Mr. Long got the bag from her and began putting money into it, along with the tracking device that later led the police to appellant. Mr. Long testified that he saw appellant pull up his shirt to show something to Mr. Horne. Although Mr. Long acknowledged that he did not see what appellant was showing to Mr. Horne, he said that he “felt like whatever he was showing ... probably wasn't something we wanted to deal with.” Mr. Long said he felt threatened and believed that they should comply with whatever appellant wanted so appellant would leave as soon as possible.

Although Mr. Long admitted on cross-examination that he did not see the gun and that appellant did not verbally threaten him, those things are not required as elements of aggravated robbery. There is no requirement that the threat of physical harm be made [Ark. App. 5]directly or indirectly, only that physical force be immediately threatened, however that threat may be communicated. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994); Butler v. State, 2011 Ark. App. 708, 2011 WL 5562805. Based on Mr. Long's testimony, the jury could infer that Mr. Long believed appellant was showing Mr. Horne some sort of weapon.

Also instructive is Wheat v. State, 297 Ark. 502, 503, 763 S.W.2d 79, 80 (1989), in which our supreme court stated:

The evidence adduced at trial showed that petitioner who was armed with a pistol entered the pharmacy and forced the two clerks to lie on the floor while the pharmacist gathered the money and narcotics into a bag. Only the property of the pharmacy was taken and there was no effort made to take any personal property belonging to the pharmacist and clerks.

In Wheat, the supreme court concluded that the robbery was a single transaction, the intention of which was to commit theft of the pharmacy property and not three separate offenses. Id. Similar to Wheat, in this case, the only money that was taken was from the bank.

We hold, however, that this case is more similar to Robinson, supra, where the supreme court held that a threat directly made to a store clerk also included a customer who happened to be in harm's way, justifying Robinson's convictions for two counts of aggravated robbery. Id. at 24–25, 875 S.W.2d at 842. Even if appellant intended to show his gun only to Mr. Horne, the fact that Mr. Long was in a position to see appellant display something to Mr. Horne and to feel threatened by that action is sufficient to support appellant's conviction for committing aggravated robbery as to Mr. Long.

Likewise in McKinzy v. State, 313 Ark. 334, 853 S.W.2d 888 (1993), the appellant attempted to rob a Harvest Foods store as two employees were closing and leaving the store [Ark. App. 6]one evening. While he did physically threaten and assault both employees, he argued that he committed only one aggravated robbery instead of two because he sought only to take the store's money. The supreme court reiterated that robbery focuses on the threat of physical harm to the victim and that one consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place. Id; see also Robinson, supra, and Mitchell, supra. The supreme court also stated, as it had in Mitchell, that for aggravated robbery, ownership is not an element of proof, and the offense is complete with the threat of physical harm and the intent to commit theft. Subsequently, in McDaniel v. Norris, 38 F.3d 385 (8th Cir.1994), the Eighth Circuit Court of Appeals referenced both Wheat and McKinzy, although disposing of the appeal on procedural grounds. The court stated that “[u]nder Arkansas law, however, one commits aggravated robbery by threatening or using force to take property from another, even if the property did not belong to the victim, and even if the robbery attempt was unsuccessful.” McDaniel, 38 F.3d at 386. This is precisely the scenario that occurred in the instant case; accordingly, we affirm.

II. Denial of Motion for New Trial

The decision whether to grant or deny a motion for new trial lies within the sound discretion of the circuit court, and ...