Mays v. State

James Earl MAYS v. STATE of Arkansas

CA CR 96-674                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                        Divisions I & II
                 Opinion delivered May 21, 1997


1.   Evidence -- sufficiency of -- factors on review. -- When
     reviewing the sufficiency of the evidence on appeal, the
     appellate court simply determines whether the evidence in
     support of the verdict is substantial; substantial evidence is
     that which is forceful enough to compel a conclusion one way
     or the other and passes beyond mere suspicion and conjecture;
     in determining whether there is substantial evidence, the
     evidence is reviewed in the light most favorable to the
     appellee, and it is permissible to consider only that evidence
     which supports the guilty verdict; the question of the
     sufficiency of the evidence to support a conviction is one of
     law.  

2.   Witnesses -- description by witness need not be totally
     accurate. -- The law does not require that a witness's
     description be totally accurate.  

3.   Motions -- motion for directed verdict properly denied --
     weakness in identification of defendant is matter of
     credibility for jury to resolve. -- Although the victim
     indicated that he was not absolutely certain in his
     identification of appellant as the robber, appellant's
     conviction did not rest on his testimony alone; the jury could
     reasonably infer that the man who robbed the victim was the
     same man seen behind the liquor store by another witness who
     positively identified the man he saw as the appellant; the
     accuracy of the victim's identification of appellant and the
     alleged weaknesses of that identification were matters of
     credibility to be resolved by the jury; the circuit judge did
     not err in denying the motion for directed verdict.

4.   Criminal procedure -- photographic lineup properly admitted --
     no error found. -- Where, after the State's opening statement,
     appellant asked the court to rule that any references to the
     photographic lineup would be inadmissible because the
     photographs had been lost by the police department, and the
     court denied the motion, no error was found in the court's
     ruling; testimony about an out-of-court identification is
     generally admissible. 


     Appeal from Mississippi Circuit Court; Samuel H. Turner,
Judge; affirmed.
     Mikke Connealy Marshall, for appellant.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     John E. Jennings, Judge.
     James Earl Mays was charged with the aggravated robbery of
Mack's Liquor Store in Blytheville.  He was found guilty by a
Mississippi County jury and was sentenced by the court to ten years
imprisonment.  On appeal Mays contends that the evidence was
insufficient to sustain the conviction and that the court erred in
denying his motion to suppress testimony related to a photographic
line-up.  We find no error and affirm.
     When reviewing the sufficiency of the evidence on appeal, we
do not weigh the evidence but simply determine whether the evidence
in support of the verdict is substantial.  Passley v. State, 323
Ark. 301, 915 S.W.2d 248 (1996).  Substantial evidence is that
which is forceful enough to compel a conclusion one way or the
other and passes beyond mere suspicion and conjecture.  Drummond v.
State, 320 Ark. 385, 897 S.W.2d 553 (1995).  In determining whether
there is substantial evidence, we review the evidence in the light
most favorable to the appellee, and it is permissible to consider
only that evidence which supports the guilty verdict.  Williams v.
State, 321 Ark. 635, 906 S.W.2d 677 (1995).  The question of the
sufficiency of the evidence to support a conviction is one of law. 
Bridges v. State, 46 Ark. App. 198, 878 S.W.2d 781 (1994).  
     Appellant's conviction rests primarily on the testimony of two
witnesses, Robert Pillow and Joseph Bearden.  Robert Pillow was the
clerk at Mack's Liquor Store on the day of the robbery.  He
testified that at about 2:25 or 2:30 p.m. a man entered the store. 
The man raised his shirt, showing a gun in the front of his pants
and said, "You know what I want."  When Mr. Pillow realized he was
being robbed, he opened the cash register and gave its contents to
the man.  The man took Pillow to the back of the store and told
Pillow that he could not go out the front door.  Pillow gave the
man his keys.  While they were going into the back room the bell
went off at the drive-through window.  Pillow said, "I need to get
that," and the man said, "No, no, just come on."  The man tied
Mr. Pillow up, went back in the store and got a half-gallon of
liquor, and went out the back door.  Pillow testified that the man
was in the store for five minutes.  
     The prosecuting attorney asked whether Mr. Pillow got a good
look at the person's face and Mr. Pillow answered, "I didn't really
pay attention too close because I was scared, I was worried about
the gun."  Mr. Pillow described the man as black, "medium-skinned,"
in his mid-thirties, and having a clean-cut moustache.  Pillow
testified that the man weighed 160 to 180 pounds.  Then:
          Q.   Do you see that person today?

          A.   Well, that fellow looks like him except
               he's got, he's got a beard that he didn't
               have that day.

     Pillow testified that he identified the person that robbed him
from a four-photograph line-up provided by the police officers. 
Finally, on direct examination:
          Q.   All right, sir.  Now, do I understand
               your testimony, are you able to say
               today that the defendant seated over
               here is the person except for the
               facial hair?

          A.   Yes, sir, he resembles the person
               very much so except for the facial
               hair.  But, you know, he had, you
               know, he had a hat on so, you know,
               from here up, I can't honestly say
               that that's him.  I cannot say that.

Then on cross examination: 

          Q.   Good afternoon, Mr. Pillow.  You say
               you cannot honestly say that this
               person seated at counsel table is
               the person?

          A.   No, ma'am.  He just, he looks like
               the fellow, but like I said, there
               was a hat on.  And, you know, from
               here down, yes, ma'am, except
               without the beard.

At the conclusion of cross examination:

          Q.   And if I recall your testimony
               earlier, you were not certain of the
               person's identity in the line-up, is
               that correct?

          A.   Yes, ma'am.

          Q.   And you're not certain today of the
               person's identity, is that correct?

          A.   Yes, ma'am.

          Q.   Okay.

     Joseph Bearden was a liquor salesman calling on Mack's Liquor
Store on the day of the robbery.  He testified that between 2:30
and 2:45 p.m. a car pulled up to the drive-through window as he,
Bearden, drove up.  Bearden knocked on the door and got no
response.  As he headed back to his car he saw a man come from
behind the liquor store.  He testified that the man did a "stop-
step" like he was going to back up.  He positively identified the
appellant as the man he saw that day.  He testified that "it looked
like [the man had] a moustache, but I couldn't tell if there was
much of a beard."  
     Ross Thompson, a Blytheville police officer, testified that he
showed a photographic line-up to Mr. Pillow.  He testified that
Mr. Pillow picked out the photograph of the appellant without
hesitation but that Pillow could not unequivocally say that that
was the person who robbed him.  Officer Thompson also testified
that the photographic line-up had been lost within the police
department.  
     In ruling on the defendant's motion for directed verdict the
trial judge said:
          THE COURT:  

               In this case here we have a situation
          where the victim himself has indicated that he
          could not positively identify the defendant as
          the person who robbed him.  But on the other
          hand, he has said in open Court that the
          defendant resembles the individual that came
          in the store, that the only difference is that
          he couldn't identify him because he said he
          had hair on his face at this point in time. 
          Also when the photo line-up was presented to
          him that he again made a statement that he
          couldn't positively identify him, the
          individual there as being the one that
          perpetrated that robbery, but there were two
          pictures there that he indicated that looked
          almost like twins.  But, in fact, he did pick
          out the defendant as being the person who
          committed the robbery.  That coupled with the
          statement from Mr. Bearden that he saw the
          defendant behind Mack's Liquor Store and that
          upon viewing him first that the defendant
          halted or paused or acted in a suspicious
          manner before he moved on down the alleyway.

               All of that looked upon in the most
          favorable light certainly constitutes, in the
          Court's opinion, substantial evidence enough
          to allow it to go to the jury.  As you know,
          the Court is not to weigh the evidence, not to
          decide whether or not it is evidence that even
          at a preponderance is substantial.  And the
          Court is going to rule that there is
          substantial evidence and the matter should go
          to the jury.  The motion for directed verdict
          is denied.

     We think that the trial court's ruling was correct.  The law
does not require that a witness's description be totally accurate. 
State v. Radford, 559 S.W.2d 751 (Mo. App. 1977).  In Davis v.
State, 284 Ark. 557, 683 S.W.2d 926 (1985), the supreme court said,
"The accuracy of the [victim's] identification of appellant and the
alleged weaknesses of that identification were matters of
credibility to be resolved by the jury."  While Mr. Pillow was not
absolutely certain in his identification of appellant as the
robber, appellant's conviction does not rest on Mr. Pillow's
testimony alone.  Under the circumstances the jury could reasonably
infer that the man who robbed Mr. Pillow was the same man seen
behind Mack's Liquor Store by Mr. Bearden.  Mr. Bearden positively
identified the man he saw as the appellant.  The circuit judge did
not err in denying the motion for directed verdict.
     After the State's opening statement appellant asked the court
to rule that any references to the photographic line-up would be
inadmissible, because the photographs had been lost by the police
department.  The court denied the motion.  We find no error in the
court's ruling.
     Testimony about an out-of-court identification is generally
admissible.  See Hilton v. State, 278 Ark. 259, 644 S.W.2d 932
(1983); Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994). 
Appellant relies, in part, on Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988).  In Hamm the supreme court held that when the
State lost the tape recording of the defendant's confession it was
error to admit the transcription.  The court expressly noted,
however, that oral testimony about the confession was admissible. 
     Appellant's reliance on Bowden v. State, 297 Ark. 160, 761 S.W.2d 148 (1988), is misplaced.  Bowden involved a live line-up
and the issue of whether the defendant waived his right to counsel. 
Neither issue is involved in the case at bar.  
     For the reasons stated the judgment of the trial court is
affirmed.
     Robbins, C.J., and Griffen, J., agree.
     Neal, Crabtree, and Roaf, JJ., dissent.


     Andree Layton Roaf, Judge, dissenting.
     While I agree with the majority that the trial court did not
err in denying the motion to suppress testimony relating to the
photograph lineup, I strongly disagree with the holding that the
trial court correctly denied Maysþs motion for directed verdict.
     The majority has found the following evidence substantial, and
thus sufficient to sustain the conviction of James Earl Mays for
aggravated robbery of a liquor store: the testimony of the victim,
Robert Pillow, who repeatedly failed to identify Mays as the robber
in both a photographic line-up and at trial, and the testimony of
Dennis Bearden who positively identified Mays as a man whom he saw
coming from the alleyway behind the liquor store around the time of
the robbery.  Bearden testified that he closely observed Mays as he
walked away from the building because he became suspicious of him,
and that he þgot a good look at him.þ  However,  although the
victim testified that the robber left wearing a hat and carrying a
half-gallon of liquor, and described him as approximately 5'8"
tall, the observant Mr. Bearden made no mention of either a hat or
a half-gallon of liquor, and described the person he observed as a
little over six feet tall.
     The majority holds that the trial court correctly denied
Maysþs motion for directed verdict because þthe law does not
require that a witnessþs description be totally accurate,þ relying
upon a Missouri case, State v. Radford, 559 S.W.2d 751 (Mo. App.
1977) and Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985), for
the propositions that a witnessþs description need not be totally
accurate, and that weaknesses in the victimþs identity of the
accused are matters of credibility for the jury to resolve. 
However, in both Radford and Davis, the victims positively
identified the accused in a pretrial line-up and at trial.  In
Radford, there was a discrepancy in the defendantþs height and the
estimation of height reported by the victim; the victim in Davis
was unsure at the trial held six years after the robbery whether
Davis had been wearing a beard.  The majorityþs reliance upon
Radford and Davis is clearly misplaced.
     Even more troubling is the majorityþs failure to address
Maysþs argument concerning the circumstantial nature of the
evidence.  Since no one identified Mays as the robber, the case
against him was entirely circumstantial.  It is well settled that
the fact that evidence is circumstantial does not render it
insubstantial.  Tucker v. State, 50 Ark. App. 203, 901 S.W.2d 865
(1995). To constitute substantial evidence in a criminal trial,
however, circumstantial evidence must exclude every other
reasonable hypothesis consistent with the appellantþs innocence,
and the factfinder must not be left to speculation and conjecture. 
Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996); Knight v.
State, 51 Ark. App. 60,  908 S.W.2d 664 (1995).  Although the
question of whether circumstantial evidence excludes every other
reasonable hypothesis other than the accusedþs guilt is usually for
the jury, see Abbot v. State, 256 Ark. 558, 508 S.W.2d 733 (1974),
on appellate review, the reviewing court considers whether the
evidence was in fact sufficient to exclude all other reasonable
hypotheses.  Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). 
Two equally reasonable conclusions regarding what occurred merely
give rise to a suspicion of guilt, and that is insufficient as a
matter of law to sustain a criminal conviction.  Carter v. State,
supra.
     Here, even the evidence that supports the conviction presents
two equally plausible hypotheses: either Mays was the person who
committed the robbery, or he was, unluckily for him, simply in the
wrong place at the wrong time.  Consequently, the jury had to
resort to speculation and conjecture to convict Mays of this crime,
and I would reverse and dismiss.
     Neal and Crabtree, JJ., join in this dissent.