Darryl William Wiggins v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-855

June 22, 2005

DARRYL WILLIAM WIGGINS AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR 03-3165]

STATE OF ARKANSAS HONORABLE BARRY SIMS, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant Darryl Wiggins was convicted of theft of property and residential burglary. He was sentenced to fifteen years' imprisonment. On appeal, appellant alleges that the trial court erred when it denied his motions for directed verdict. We affirm.

The facts of this case are as follows. On May 21, 2003, Jerry Sanders heard a noise coming from the home of his neighbor, George Moreno, Sr. When Mr. Sanders looked outside, he saw a bluish-green car backed into the driveway of Mr. Moreno's home with its trunk open. He then called Mr. Moreno and told him what was going on. Mr. Moreno asked Mr. Sanders to call the police. After calling the police, Mr. Sanders retrieved his rifle and went outside. While outside, he observed Mr. Moreno's son, George Jr., and three black males exit the residence carrying rifles, computers, VCRs, and DVD players. When Mr. Sanders told the men to return the items, George Jr. told the men "throw the stuff in the car, he won't shoot." The men put the items in the car and drove off.

When an officer with the Jacksonville Police Department arrived, Mr. Sanders gave the officer a description of the car and its license plate number. A check of the license plate indicated that the vehicle belonged to Vanetta Wiggins. Later that day, the vehicle was found at a residence located at 708 Southeastern in Jacksonville. Some of Mr. Moreno's property was inside the vehicle. Appellant, his brother Winshell Wiggins, Chris Smith, George Jr., and Adrian Hadley were found inside the residence, along with some of Mr. Moreno's property. Appellant was subsequently arrested and charged with residential burglary and theft of property. A bench trial was held on April 12, 2004.

The following testimony was heard during the trial. Mr. Sanders testified that prior to the May 21 incident, he had seen appellant at the Moreno home. He said that he was taken to the Wiggins home in order to identify the suspects. He said that he could not distinguish between appellant and his brother but knew that one of them was involved in the incident. Mr. Sanders said that he was able to identify the remaining three suspects.

George Moreno, Sr., testified that, when he returned home on May 21, he found his house tossed. He said the air conditioners had been torn out of the windows and the doors busted. He testified that he had nine rifles and that they were missing from his gun cabinet. Mr. Moreno stated that some of the items missing consisted of jewelry, DVDs, VCRs, knives, walkie-talkies, and cameras. He valued his missing property at $7,000. He testified that he had managed to retrieve most of his property. Mr. Moreno said that he found his camcorder at a pawnshop.

Officer Wells of the Jacksonville Police Department testified that he responded to the burglary call at the Moreno home. He said that, when he arrived, he met Mr. Sanders, who provided a description of the vehicle. He said that Mr. Sanders described the vehicle as being a blue Oldsmobile Alero, Arkansas license plate 187 HIN. Officer Wells testified that a check of the license plate indicated that the vehicle belonged to Vanetta Wiggins. Later that day, the vehicle was found at the Wiggins' family home with some of Mr. Moreno's property inside. He said that appellant, his brother Winshell Wiggins, George Jr., Chris Smith, and Adrian Hadley were all inside the home. They had some of Mr. Moreno's property inside with them. Officer Wells identified appellant from the bench. He said that while he was at the Wiggins' residence, Mr. Moreno and Mr. Sanders arrived. Officer Wells testified that Mr. Sanders was unable to distinguish between appellant and his brother, but was able to identify the other three suspects.

Michael Lashbrook, owner of Arkansas Loans Pawn Shop, identified a pawn ticket that was issued at his business on May 21 for a camcorder. He said that the ticket indicated that appellant pawned the camcorder. He said that, at the time the camcorder was pawned, appellant's identification number was noted on the ticket. However, he did not see who actually pawned the camcorder. All Mr. Lashbrook knew was that someone came in and pawned the camcorder using appellant's identification.

George Moreno, Jr., testified that he and "some other dudes" burglarized his father's home. He said they took guns, DVD players, DVDs, and jewelry. He identified two of these men as being appellant and Chris Smith. George Jr. testified that appellant drove them to his father's house and pawned the camcorder.

Following George Jr.'s testimony, the State rested and appellant moved for directed verdict on both charges. He argued that George Jr. was an accomplice and, without corroborating testimony or evidence that appellant was involved, there was no direct evidence establishing that appellant committed residential burglary or theft of property. The trial court denied the motion.

Appellant then put on the testimony of Christopher Smith, who testified that appellant was not involved in the burglary. Afterwards, appellant rested and renewed his motions for directed verdict. The trial court denied the motions and found appellant guilty on both charges. It is from that decision that appellant now brings this appeal.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Tate v. State, 84 Ark. App. 184, 137 S.W.3d 404 (2003). 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. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). Only evidence supporting the verdict will be considered. Id.

A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-39-103(a)(1) (Repl. 1997). A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(1) (Repl. 1997).

Appellant argues that there was no evidence to corroborate the testimony of his accomplice, George Jr. A person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is corroborated by other evidence tending to connect the defendant with the commission of the offense. McGehee v. State, 348 Ark. 395, 72 S.W.3d 867 (2002). Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. Baughman v. State, supra. The test for determining the sufficiency of the corroborating evidence is whether, if the accomplice testimony were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Tate v. State, supra. Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Baughman v. State, supra. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id.

Here, when we take away George Jr.'s testimony, Mr. Sanders' testimony establishes that a crime was committed. The pawn-ticket and the car tend to connect appellant to the crime. Therefore, we cannot say that appellant's convictions are not supported by substantial evidence, and accordingly, we affirm.

Affirmed.

Gladwin and Baker, JJ., agree.