Tobias L. Harris v. State of Arkansas

ar04-314

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

 

DIVISION II

TOBIAS L. HARRIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 04-314

March 9, 2005

APPEAL FROM THE LITTLE RIVER

COUNTY CIRCUIT COURT

[CR-02-37A]

HONORABLE CHARLES A.

YEARGAN, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Appellant, Tobias L. Harris, was tried by a jury and found guilty of the offenses of aggravated robbery, aggravated assault, and fleeing. He was sentenced to twenty-five years on the aggravated-robbery charge, six years on the aggravated-assault charge, and six years on the fleeing charge. All of the sentences were ordered to run consecutively. For his sole point of appeal, appellant contends that the trial court erred in denying his motion for directed verdict with respect to the offenses of aggravated robbery and aggravated assault. We disagree and affirm.

Standard of Review

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Meadows v. State, ____ Ark. ____, ____ S.W.3d ____ (Dec. 9, 2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or

conjecture. Id. When the defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. A defendant's improbable explanation of suspicious circumstances may be admissible as proof of guilt. Parker v. State, 355 Ark. 639, 144 S.W.3d 270 (2004). One eyewitness's testimony is sufficient to sustain a conviction, and his testimony is not clearly unbelievable simply because it is uncorroborated or because it has been impeached. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002).

Here, Howard Stinnett, who owned the Ashdown Hardware Company, explained that on June 13, 2002, he arrived at his store around 7:15 a.m., and that four of his regular customers and friends, along with his son, Tim, came into the store with him. He testified that appellant then entered the store and went to the paint area. He said that he went over to see if he could help appellant, and that appellant told him that he needed some paint but that he did not know what kind or color. He stated that the next thing he knew, he heard footsteps running down the aisle and another man was ten or twelve feet away, pointing a silver gun between his eyes. He said that the other man was wearing a ski mask and that he ordered, "This is a hold-up, hit the floor." Stinnett stated that he was stunned for two or three seconds. He explained that the armed man hit him on the shoulder with the gun and then held the gun at the back of his head while walking him to where the other persons in the store were located. He testified that the man then said, "Everybody on the floor."

Stinnett testified that he could hear appellant pulling drawers out of the safe, and that he heard him say, "G-damn," when he realized that there was no money in the bank bags. He stated that the man with the gun hollered at appellant, telling him he was too slow. Stinnett stated that he thought the man with the gun was going to kill them because he did not find what he was looking for. He stated that appellant took a laptop computer off the desk and that he jerked computer and telephone wires out of the wall.

Stinnett stated that he heard the men running out of the store and the ringing of the bell over the door as they exited on the east side. He explained that he took his gun and started running after the men; that he saw appellant running diagonally across the street; that he saw his son-in-law, Terry Garner, chasing appellant; that Terry was gaining ground on appellant, about fifteen to twenty feet behind him; and that appellant turned around and Stinnett saw dust fly up off the concrete sidewalk about ten to fifteen feet behind and to the left of Terry. He testified that appellant missed Terry by twelve to twenty-four inches, and that Terry stopped chasing him at that point.

Stinnett stated that they lost some jewelry and rings; forty-two two-dollar bills; and some coins, including some half-dollars. He said that none of the money that they collect for utilities payments was taken.

James Hadaway testified that he was in the Ashdown Hardware Store on June 13, along with Howard Stinnett and others. He said that a man came in and went to the paint area, that Howard Stinnett went over to talk to him in the paint area, and that very shortly after that, a man in a ski mask came in and told them to get on the floor. He said that the man with the ski mask had a bigger gun, and that the man talking to Stinnett about paint had a smaller gun. He testified that the two men were screaming at each other and throwing stuff. He said that he did not know which one was standing over them, and that the next thing he remembered was someone saying, "They're gone." He testified that no one in the store was injured, but that they were scared.

Dewayne Merrell testified that he worked for the Ashdown sanitation department and that he was in the hardware store on June 13. He said that a black male came in and asked about paint, but that he could not say for sure that the man was appellant. He said that the next thing he remembered was the man in a ski mask pointing a gun to Howard's head and hollering, "Get down, this is a robbery." He said that the first man was kind of behind Howard Stinnett and that he had a small gun with a black barrel in his hand.

Jerry Burnett testified that he was employed by the city and that he was in the hardware store on June 13. He stated that he saw one man come in and ask about paint, and then another man come in wearing a ski mask. He said that he eased to the east door and exited the store. He explained that he saw Sergeant Gregory at the red light and that he told Gregory that men were holding up the store, and that they had a gun. He said that Gregory called for help and then waited on the two men to come out. Burnett stated that he saw Terry Garner on his way to work, and that he told Garner he could not go in because men were robbing the store. He said that when the men came out, Sergeant Gregory hollered, "Halt," and that they took off running.

Gary Gregory, an Ashdown police officer, testified that on June 13, 2002, he was on the way to get the oil changed in his police vehicle when Jerry Burnett flagged him down and told him what was going on at the hardware store. He said that he did not know the first man who came out of the hardware store, but that the second man was appellant. He stated that he told both men to halt, but that neither did.

Terry Garner, Stinnett's son-in-law, testified that as he was going to work on June 13, that he was told there were two guys in the store with guns robbing it, and that about a minute or two later, two guys came running out of the store. He said that appellant, the second man out, headed toward Highway 71 and that he took off after him. He said that he heard a shot, but did not know who was shooting; that they rounded a corner; that appellant turned around with a gun and said, "I'm going to kill you, you son-of-a-bitch"; and that appellant then fired a shot at him.

Debbie Garland testified that she was working at the Little River News on June 13. She said that the glass in her news office was mirrored so that she could see out but no one could see in, and that she saw a black male fire a gun toward Highway 71. She said that there was no question but that he was aiming at something.

Mark Sively, an auxiliary police officer in Ashdown, testified that on June 13, he heard a robbery report on the radio; that he saw a white male chasing a black male; that the black male being chased was appellant; that he saw the black male holding a large revolver; and that the black male turned to face the white male and fired a shot at him. Mark Ardwin, Ashdown police captain, testified that he heard a robbery-with-shots-fired call on June 13; that he heard Mark Sively describing the vehicle; that he caught up with the car headed south on Highway 71; that he honked his horn and flashed his lights; that he pulled alongside the vehicle and motioned for the driver to pull over; and that the car just sped up. He said that a state trooper got ahead of the car and tried to get the driver to stop; that there were several near accidents with other cars; that his speedometer read 105 at one point; and that when the subject finally left his car, Ardwin and two Texas officers were able to apprehend and restrain the subject. He said that the subject had a small revolver hanging from his pants pocket, and that when they returned to the car he had been driving, there was a large-caliber revolver on the top of the console area. Ardwin identified appellant as the one he chased all the way to Texarkana.

Accomplice Liability

"A person is criminally liable for the conduct of another person when: ... (2) He is an accomplice of another person in the commission of an offense ...." Ark. Code Ann. § 5-2-402 (Repl. 1997). "A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he: ... (2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it ...." Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1997). Our supreme court has held that the presence of an accused in the proximity of a crime in a manner suggestive of joint participation is a relevant factor in determining an accomplice's connection to a crime. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).

Aggravated Robbery

In making his sufficiency argument with respect to the aggravated-robbery conviction, appellant contends that "[i]t required speculation or conjecture to decide that the robbery victim knew Mr. Harris had a weapon, or that the victim was threatened by him," and that "there was no proof that [appellant] intended to commit a felony or misdemeanor; no testimony he committed a theft." We hold that there was substantial evidence to support appellant's conviction for aggravated robbery.

Arkansas Code Annotated section 5-12-103 (Repl. 1997) provides that a person commits aggravated robbery if he commits robbery and he: (1) is armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) inflicts or attempts to inflict death or serious physical injury upon another person. Arkansas Code Annotated section 5-12-102 (Repl. 1997) provides that a person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. A defendant may be convicted of robbery even if no property is actually taken - the emphasis is on the express or implied threat of physical harm to the victim. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). A defendant's intent or state of mind can rarely be proven by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

Here, appellant was present in the store in a manner more than suggestive of joint participation in the crime, and the other person charged in the crime pointed a gun between Mr. Stinnett's eyes and stated that "this is a hold up." Moreover, the "money-box" was retrieved from the other person when he was subsequently apprehended. Mr. Stinnett testified that he thought this other man was going to kill them because he did not find what he was looking for in the store. Thus, based on accomplice liability alone, there was substantial evidence to support the aggravated-robbery verdict.

In addition, even though Mr. Stinnett said that he did not see appellant with a gun, more than one witness testified that appellant had a gun while he was in the store. Furthermore, appellant pulled drawers out of the safe and computer wires and telephone lines out of the wall. The evidence supporting appellant's conviction for aggravated robbery was substantial, and the trial court did not err in denying his motion for a directed verdict.

Aggravated Assault

Similarly, in making his sufficiency argument regarding the aggravated-assault conviction, appellant contends that it required speculation or conjecture to decide that Mr. Harris had the state of mind to harm Mr. Garner. We disagree.

A person commits aggravated assault if under circumstances manifesting extreme indifference to the value of human life, he or she purposely: (1) engages in conduct that creates a substantial danger of death or serious physical injury to another person; or (2)displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5-13-204(a) (Repl. 1997). Again, a defendant's intent or state of mind can rarely be proven by direct evidence and must usually be inferred from the circumstances of the crime. Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997).

Here, there was testimony from several witnesses, including Terry Garner, that appellant aimed his gun at Garner and fired at least one shot. Moreover, Garner testified that appellant said, "I'm going to kill you, you son-of-a-bitch." We hold that there was substantial evidence to support the jury's verdict on aggravated assault.

Affirmed.

Hart and Neal, JJ., agree.