{
  "id": 1748275,
  "name": "James TOSH v. STATE of Arkansas",
  "name_abbreviation": "Tosh v. State",
  "decision_date": "1983-02-14",
  "docket_number": "CR 82-118",
  "first_page": "377",
  "last_page": "381",
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      "cite": "646 S.W.2d 6"
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    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
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    "name_long": "Arkansas",
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  "last_updated": "2023-07-14T21:48:23.352095+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "James TOSH v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "Frank Holt, Justice.\nThe appellant was convicted by a jury of two counts of aggravated robbery and two counts of theft of property. Punishment was fixed at 35 years imprisonment on each robbery count and 15 years on each theft count, resulting in 50 year concurrent sentences as an habitual offender. He appeals from that judgment and denial of a motion for a new trial. We affirm.\nAppellant first asserts that the jury\u2019s verdict was not supported by sufficient evidence to establish the identity of the appellant. It is argued that the testimony of the witnesses, who identified the appellant, was so contradictory, implausible and unreliable as to be insufficient to support the verdict. On appeal we review the sufficiency of the evidence to ascertain whether the verdict is supported by substantial evidence; i.e., whether the evidence is sufficient to enable the jury to reach its verdict without resort to speculation and conjecture. Cassell v. State, 273 Ark. 69, 616 S.W.2d 485 (1981). On appellate review we look only at the evidence most favorable to the appellee. Rhodes v. State, 276 Ark. 203, 634 S.W.2d 107 (1982).\nHere, two of the four victims, Mr. and Mrs. Hughes, identified the appellant from photographs and a show-up at jail three weeks after the alleged offenses as one of the persons who committed the robbery and theft upon them. At trial they were certain of appellant\u2019s identification as the person who grabbed Mrs. Hughes by her hair and held a shotgun to her \u201cthroat,\u201d threatening to shoot her. Both testified that the camper tent, where they were awakened and robbed about 2 a.m., was well lit after the robbery began. Although the appellant wore a light colored woman\u2019s stocking over his face, it did not change his facial features. One of Mrs. Hughes\u2019 hobbies was art and drawing. The first thing she was taught in art school was to focus on and recognize facial features. She testified that his face was very close to hers and at one time touched hers during the threats on her life. Appellant was \u201cmean looking, his eyes were just like the pure devil himself... I\u2019ll never forget his face.\u201d Mr. Hughes testified that, although appellant wore a \u201creal light colored hose,\u201d you could \u201csee his face good.\u201d Mr. Hughes was escorted outside to his car by other participants to get his money and was returned to the tent where he observed the appellant holding a gun to his wife\u2019s throat. Mr. Hughes was then taken to the nearby trailer of the Isbells, who were also robbed. There appellant stood guard over Mr. Hughes during which time he further observed appellant\u2019s physical appearance. We hold there is substantial evidence to support the jury\u2019s verdict.\nAppellant next argues that the trial court erred by allowing the state, in its closing argument, to place the burden of proving innocence on the appellant and by calling attention to the appellant\u2019s failure to testify. The appellant\u2019s girl friend had testified as an alibi witness that the appellant had spent the night with her on the date of the robbery and that two other persons were present with her and the appellant on that evening. In the closing argument, the prosecutor attacked the credibility of this witness, the plausibility of her testimony, and, in the course of that portion of the argument, remarked that neither of the other two persons allegedly present with appellant had been called to testify. Defense counsel objected saying, \u201cI think this is going a little too far.\u201d His objection was overruled.\nIn order to preserve a point for appellate review, \u201c[a]n objection must be sufficiently specific to apprise the trial court as to the particular error complained of in order to preserve the right to appellate review.\u201d Crafton v. State, 274 Ark. 319, 624 S.W.2d 440 (1981). A.R.Crim.P., Rule 36.21. Here, that requirement was not met. Obviously, the trial court was not afforded an opportunity to rule on the arguments now presented on appeal.\nAppellant next contends that the use of standard verdict forms in this bifurcated trial violated his Fifth Amendment right not to testify against himself. The argument is that experienced jurors know that punishment is fixed at the same time as guilt, except in habitual offender proceedings, where guilt alone is determined in the first phase of the jury\u2019s deliberation and punishment is fixed in subsequent deliberations after considering the number of prior felony convictions. Ark. Stat. Ann. \u00a7 43-2330.1 (Repl. 1977). Therefore, experienced jurors, having this knowledge, will be able\nto deduce that the defendant in a habitual offender proceeding has prior felony convictions, even though the prior convictions are not admissible to prove guilt. Appellant\u2019s argument was rejected in Woods v. State, 260 Ark. 882, 545 S.W.2d 912 (1977). Furthermore, the issue was not properly before the trial court. No objection was made to the verdict forms and the bifurcated procedure until after the trial had been concluded at which time it was raised in a motion for a new trial. We have often held that objections to a jury instruction must be made before the jury retires and objections made after the jury retires to deliberate are not timely. Hickory Springs Mfg. Co. v. Emerson, 247 Ark. 987, 448 S.W.2d 955 (1970); Sunray Sanitation v. Pet, Inc., 249 Ark. 703, 461 S. W.2d 110 (1970); and Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979).\nFinally, appellant argues that the trial court erred by admonishing the entire jury panel, in an orientation procedure earlier in the day of the trial, to attempt to avoid a hung jury. This so-called \u201cAllen\u201d or \u201cdynamite\u201d charge, which parallels AMCI 6004, was not repeated to the trial jury. No objection was made to the orientation procedure until the trial had been concluded. It was then alleged as error in a motion for a new trial. An objection, to be timely, should be made when the trial court is afforded an opportunity to correct the asserted error. Crafton v. State, supra. A litigant may not await the outcome of the case before bringing alleged errors to the attention of the trial court.\nAt a posttrial hearing, one juror testified that the court\u2019s \u201cAllen\u201d charge, upon impanelment of the entire jury, affected her vote during deliberations. This testimony was impermissible and clearly violated Ark. Stat. Ann. \u00a728-1001, Rule 606 (b) (Repl. 1979). Veasey v. State, 276 Ark. 457, 637 S.W.2d 545 (1982); and Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 64 (1981).\nAffirmed.",
        "type": "majority",
        "author": "Frank Holt, Justice."
      }
    ],
    "attorneys": [
      "F. W. Jeffcoat and Linda Faulkner Boone, by: Linda Faulkner Boone, for appellant.",
      "Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "James TOSH v. STATE of Arkansas\nCR 82-118\n646 S.W.2d 6\nSupreme Court of Arkansas\nOpinion delivered February 14, 1983\nF. W. Jeffcoat and Linda Faulkner Boone, by: Linda Faulkner Boone, for appellant.\nSteve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee."
  },
  "file_name": "0377-01",
  "first_page_order": 401,
  "last_page_order": 405
}