Michael D. Gault v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
WENDELL L. GRIFFEN, JUDGE
DIVISION II
CACR05-921
May 3, 2006
MICHAEL D. GAULT
APPELLANT
AN APPEAL FROM GRANT
COUNTY CIRCUIT COURT
[CR04-60-2]
V.
HON. PHILLIP H. SHIRRON, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
Michael Gault appeals from his convictions for criminal attempt to manufacture
methamphetamine, possession of drug paraphernalia with intent to manufacture
methamphetamine, aggravated assault, and fleeing. He challenges the sufficiency of the
evidence, arguing that the State presented insufficient evidence of the identity of the suspect.
We hold that the State presented sufficient evidence of the suspect’s identity; therefore, we
affirm.
Corporal Ronnie Anderson of the Arkansas State Police testified that he was working
radar on northbound U.S. Highway 167 at 10:30 a.m. on April 7, 2004, when a vehicle
passed him traveling seventy-five miles per hour in a fifty-five mile-per-hour zone. Corporal
Anderson stated that he turned to initiate a traffic stop, after which the driver fled. He
testified that the driver made a couple of U-turns in the middle of the highway and then drove
out through a field, abandoned the vehicle, and fled on foot. Corporal Anderson identified
the driver of the vehicle as appellant. He stated that he had three occasions during the chase
to observe appellant. First, when Corporal Anderson thought appellant was going to stop,
he pulled his car beside appellant and looked at him. He next saw appellant when appellant
made a U-turn and struck the front of his car. Finally, Corporal Anderson saw appellant
when appellant ran through the woods. Corporal Anderson testified that appellant was
wearing a camouflage-type do-rag on his head and a blue plaid jacket. He identified the
clothing at trial. Corporal Anderson stated that the windows of the suspect’s vehicle were
not tinted and that he was able to positively identify appellant. Later that day, he went back
to the police department and identified appellant as the same person he saw in the chase
earlier. On cross-examination, Corporal Anderson stated that his initial plan was to make a
traffic stop. He testified that he never saw appellant prior to the chase. On redirect
examination, Corporal Anderson testified that he was absolutely certain that appellant was
the person that he saw in the chase, but on recross examination, he testified that appellant
was not wearing the flannel jacket or do-rag when he identified him later that evening.
Agent Brent Cole of the Sheridan Police Department testified that he responded to the
call of Corporal Anderson. When he arrived at the scene, Corporal Anderson and a canine
officer were in the woods looking for the suspect. Agent Cole stated that he went to
suspect’s vehicle and smelled iodine, which he knew to be used in the manufacture of
methamphetamine. He started searching the rear of the suspect’s vehicle, where he found
other components for manufacturing methamphetamine. Agent Cole testified that he came
in contact with appellant later that evening. Appellant was wearing a shirt that matched the
shirt that he had seen in the video taken from Corporal Anderson’s vehicle. Agent Cole
stated that appellant was not wearing anything on his head at the time; however, he later
found a camouflage sleeve in appellant’s right front pocket, which Agent Cole stated could
have been used as a headband or do-rag.
The State rested its case after calling an expert to testify about the items found in the
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suspect’s vehicle. Appellant then moved for a directed verdict, contending that Corporal
Anderson’s testimony about the identity of the suspect was insufficient to support a
conviction. The court denied the motion. Appellant renewed his motion after presenting his
case, which consisted of testimony from his son, who stated that he and appellant scouted
turkeys for hunting that morning; and from Captain Bob Williamson of the Sheridan Police
Department, who testified that appellant had a pair of camouflage binoculars with him when
he was booked, which one would use if one were scouting turkeys. The renewed motion was
also denied.
The jury found appellant guilty of criminal attempt to manufacture
methamphetamine, possession of drug paraphernalia with intent to manufacture
methamphetamine, aggravated assault, and fleeing. Appellant was sentenced to a total of
seventy-four years in the Arkansas Department of Correction.
For his sole point on appeal, appellant argues that the trial court erred in denying his
motion for directed verdict. A motion for directed verdict is a challenge to the sufficiency
of the evidence. Whisenant v. State, 85 Ark. App. 111, 146 S.W.3d 359 (2004). On appeal
from a denial of a motion for directed verdict, the sufficiency of the evidence is tested to
determine whether the verdict is supported by substantial evidence, direct or circumstantial.
Id. In determining whether there is substantial evidence to support the verdict, this court
reviews the evidence in the light most favorable to the State and considers only the evidence
that supports the verdict. Id. Substantial evidence is that evidence which is of sufficient
force and character to compel a conclusion one way or the other beyond suspicion or
conjecture. Id.
Appellant argues that the evidence is insufficient to support his conviction because
the State presented no evidence placing him in possession of the vehicle or at the scene and
because Corporal Anderson’s identification at the scene was “suspect, vague and unreliable.”
As part of his argument, he discusses six factors, which he argues this court should consider
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in determining the reliability of a suspect identification:
(1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of
the prior description of the accused; (3) any identification of another person prior to
the pretrial identification procedure; (4) the level of certainty demonstrated; (5) the
failure of the witness to identify the defendant on a prior occasion; and (6) the lapse
of time between the alleged act and the pretrial identification.
Appellant’s Brief at 10-AG. Appellant cites Chism v. State, 312 Ark. 559, 853 S.W.2d 255
(1993), and Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997), in support of using these
factors to determine whether the evidence was sufficient to support his conviction.1
However, the relevant portions of both cases involved a challenge to the in-court
identification of the accused due to a tainted pre-trial photo lineup. Appellant does not
challenge the admissibility of any out-of-court suspect identification. He merely argues that
the State failed to present evidence sufficient to place him in possession or ownership of the
suspect vehicle or the items found therein. Appellant’s reliance on these factors is misplaced.
The State relies on Bowman v. State, 83 Ark. App. 223, 125 S.W.3d 833 (2003), in
support of its position that it did present sufficient evidence of the suspect’s identity. There,
the victim testified that she saw the appellant earlier in the day in question when he stopped
his vehicle and told her not to put her foot on the ground while riding her bicycle. Later that
day, the appellant pulled up beside her, exposed himself, and quickly drove off. The
appellant challenged the sufficiency of the evidence, arguing that the in-court identification
of the suspect was unreliable. We stated, “Absent an allegation of constitutional infirmity
in the eyewitness identification process, the reliability of [the victim’s] identification of
1
Both cases involved several points on appeal, including challenges to the sufficiency
of the evidence. However, neither of the sufficiency challenges involved the identity of
the suspect. See Travis v. State, supra (holding that the challenge to the sufficiency of
the evidence was not preserved for appellate review without discussing the merits of the
challenge); Chism v. State, supra (holding that the evidence was insufficient to support a
kidnapping charge, but on the basis that the State failed to prove that the victim’s liberty
was restrained in excess of the restraint that incidental to the accompanying battery and
theft).
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appellant was a question for the factfinder.” Id. at 225, 125 S.W.3d at 834 (citing Phillips
v. State, 344 Ark. 453, 40 S.W.3d 778 (2001)). We continued:
For instance, in Stipes v. State, 315 Ark. 719, 870 S.W.2d 388 (1994), Stipes
questioned the reliability of the victim’s identification of him as the perpetrator. In
considering his argument, the court stated that “when a witness makes a positive
identification of a suspect, any challenge to the reliability of the identification
becomes a matter of credibility for the factfinder to determine,” and “[t]he factfinder’s
decision will not be disturbed on appeal when there is substantial evidence to support
it.” Stipes, 315 Ark. at 721, 870 S.W.2d at 389. Further, the court stated that
“unequivocal testimony identifying the appellant as the culprit is sufficient to sustain
a conviction.” Id. The court affirmed Stipes’s convictions, concluding that the
victim’s unequivocal pretrial and in-court identifications of Stipes as the perpetrator
constituted sufficient evidence.
Id.
It is essential to every case that the accused be shown as the one who committed the
crime. Williams v. State, 308 Ark. 620, 825 S.W.2d 826 (1992). Here, Corporal Anderson
identified appellant as the suspect involved in the chase. Absent a constitutional challenge,
any challenge to the reliability of his identification of the suspect was a question for the jury.
Anderson’s testimony was sufficient evidence of the suspect’s identity, and appellant’s
conviction is therefore affirmed.
Affirmed.
P ITTMAN, C.J., and R OAF, J., agree.
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