Passley v. State

Thomas Roy PASSLEY, Jr. a/k/a Douglas Lee
Bolkema v. STATE of Arkansas

CR 95-903                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 5, 1996


1.   Appeal & error -- motion for a directed verdict is a challenge
     to the sufficiency of the evidence -- challenge to sufficiency
     of the evidence must be reviewed prior to a review of trial
     errors. -- A motion for a directed verdict is a challenge to
     the sufficiency of the evidence; preservation of an
     appellant's right to freedom from double jeopardy requires a
     review of the sufficiency of the evidence prior to a review of
     trial errors.

2.   Evidence -- challenge to sufficiency -- substantial evidence
     discussed. -- Where reviewing the sufficiency of the evidence
     on appeal, the court does not weigh the evidence but 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 pass
     beyond mere suspicion and conjecture; in determining whether
     there is substantial evidence, 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;
     further, circumstantial evidence may constitute substantial
     evidence when every other reasonable hypothesis consistent
     with innocence is excluded; whether a reasonable hypothesis
     exists is for the trier of fact to resolve. 

3.   Criminal law -- accomplice liability statute discussed --
     criminal liability makes no distinction between principals and
     accomplices. -- Arkansas Code Annotated  5-2-403(a) (Repl.
     1993) provides that a person is an accomplice of another
     person in the commission of an offense if, with the requisite
     intent, he aids, agrees to aid, or attempts to aid the other
     person in commission of the offense; under the accomplice
     liability statute, a defendant may properly be found guilty
     not only of his own conduct, but also by that conduct of his
     accomplice; when two or more persons assist one another in the
     commission of a crime, each is an accomplice and criminally
     liable for the conduct of both; finally, there is no
     distinction between principals on the one hand and accomplices
     on the other, insofar as criminal liability is concerned.

4.   Criminal law -- accomplice liability -- relevant facts
     considered. -- Stolen goods recovered from a dwelling shared
     by an accomplice is not sufficient corroboration standing
     alone; however, possession of stolen property by the accused
     is a proper circumstance to consider in determining whether
     there was evidence tending to connect him with the crimes of
     burglary and grand larceny; the presence of an accused in the
     proximity of a crime, opportunity, and association with a
     person involved in the crime in a manner suggestive of joint
     participation are relevant facts in determining the connection
     of an accomplice with the crime; a person's flight to avoid
     arrest may be considered as corroboration of evidence tending
     to establish his guilt. 

5.   Evidence -- proof sufficient to establish the joint nature of
     appellant's activities with the co-defendants -- state not
     required to prove appellant physically entered their home with
     the requisite intent. -- Where the proof at trial was amply
     sufficient to establish the joint nature of appellant's
     criminal activities with the co-defendants, the State was not
     required to prove that the appellant physically entered the
     home of each victim with the intent to deprive them of their
     property.

6.   Criminal procedure -- severance -- granting or refusing
     discretionary with the trial court. --  Granting or refusing
     a severance is a matter within the discretion of the trial
     court; a defendant has an absolute right to a severance of
     offenses joined solely on the ground that they are of same or
     similar character.

7.   Criminal procedure -- denial of severance proper -- proximity
     in time and place provided an ample basis for denial of
     severance. -- The appellant's contention that there was no
     evidence that the March 15 and March 16 burglaries were a part
     of a single plan or scheme was without merit where six
     burglaries occurred during the day on March 15 and five
     burglaries occurred prior to 2:00 p.m. on March 16; the
     burglaries occurred in the same locale and during the day,
     they were all residential burglaries, and in each case a door
     was forced open; the appellant's wife provided evidence of a
     scheme or plan when she testified at trial that the burglaries
     were committed to raise money so that "we can go to Florida
     and pick up my kids"; thus, the proximity in time and place
     and evidence of a single scheme or plan provided an ample
     basis for the denial of severance. 

8.   Evidence -- when trial court will exclude relevant evidence --
     trial court's decision reversed only upon a showing of
     manifest abuse of discretion. -- Rule 403 of the Arkansas
     Rules of Evidence allows a trial court to exclude relevant
     evidence if its probative value is substantially outweighed by
     the danger of unfair prejudice, this weighing is a matter left
     to the trial court's sound discretion and will not be reversed
     absent a showing of manifest abuse.

9.   Evidence -- 911 call allowed into evidence by trial court --
     no abuse of discretion found. -- The appellant's argument that
     the trial court improperly denied his motion in limine to
     suppress the 911 tape was without merit where even though the
     State had clear proof that someone entered the caller's home
     without resorting to the "911" call, the call served to
     explain why the police were in the area searching for a blue
     Thunderbird; further, the appellant offered no authority for
     how the caller's alleged "frantic voice" inflamed the jury;
     the appellant failed to establish that the trial court abused
     its discretion.

     Appeal from Washington Circuit Court; Kim Smith, Judge;
affirmed.
     Kent McLemore, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.
     Andree Layton Roaf, Justice.February 5, 1996   *ADVREP8*










THOMAS ROY PASSLEY JR. A/K/A
DOUGLAS LEE BOLKEMA
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,







CR95-903



APPEAL FROM THE WASHINGTON
COUNTY CIRCUIT COURT,
NO. CR94-452,
HON. KIM SMITH, JUDGE,



AFFIRMED.


                   Andree Layton Roaf, Justice

     Appellant Thomas Roy Passley, Jr., was convicted of eleven
counts of residential burglary and nine counts of theft of property
for crimes committed over a two day period.  He was sentenced as an
habitual offender to eighty years imprisonment.  On appeal, Passley
asserts that the trial court (1) abused its discretion in failing
to sever the March 15, 1994, burglaries from the March 16, 1994,
burglaries, (2) abused its discretion by allowing the introduction
of a tape of a "911" call in violation of A.R.E. Rule 403, and (3)
erred in failing to grant Passley's motions for directed verdict. 
We affirm.
     Ms. Peggy Swingel testified that at approximately 1:50 p.m. on
March 16, 1994, someone began ringing her doorbell, but she did not
answer the door.  Subsequently, someone began kicking the back
door.  She entered her living room in order to reach a cordless
telephone, and she could see that someone was in her kitchen.  She
called "911," and the intruders left her home.  She reported that
two men just left her home in a gray or blue-gray car, possibly a
Thunderbird.  Jovey Marshall of the Washington County Sheriff's
Office testified that he received the "911" call at approximately
1:50 p.m. and a Thunderbird was stopped at approximately 1:54 p.m.
     Morton Marshall, Farmington Chief of Police, was dispatched in
response to the call and he encountered a blue Thunderbird.  Chief
Marshall pursued the vehicle and observed that there were two women
and two men in the vehicle.  After the vehicle stopped, the two men
escaped.  Co-defendants Michelle Vincent and Tammy Johnson a/k/a
Lisa Faye Bradish were apprehended in the Thunderbird.  The two
men, the appellant and Warren (Morn) Franklin Passley III, were
captured approximately ten minutes later.
     The appellant a/k/a Douglas Lee Bolkema and the three co-
defendants were charged by felony information with thirteen counts
of burglary and twelve counts of theft of property.  The crimes
were allegedly committed on February 7, 1994, March 4, 1994, March
15, 1994, and March 16, 1994.  The information alleged that the
defendants entered homes on February 7 and March 4 and took
property valued in excess of $2,500.00.  The information provided
that on March 15 the defendants burglarized six homes and on March
16 the defendants burglarized four homes.  Further, the information
alleged that the defendants took property valued in excess of
$2,500.00 from five of the homes; property valued in excess of
$200.00 from three of the homes; and property valued at less than
$200.00 from two of the homes.  Finally, the information charged
the defendants with burglary for entering the home of Peggy Swingel
on March 16.
     The Thunderbird in which the defendants were riding was owned
by Tammy Johnson, the appellant's wife.  A number of items from the
burglaries committed on March 15 and March 16 were found either in
pillow cases in the trunk of the car or in the possession of the
defendants.  A ring, watch, and knife were found on the appellant
when he was apprehended.  The ring was identified as one taken in
a March 16th burglary, and the knife and watch were identified as
taken in a March 15th burglary.  Property taken on those dates from
seven other homes was also recovered from either the Thunderbird or
the co-defendants.
     Mrs. Marjie Million testified that Tammy Johnson is her niece. 
Mrs. Million further testified that Tammy Johnson, Thomas Roy
Passley, Jr., Warren Franklin Passley III, and Michelle Vincent
stayed in her home on March 15 and March 16, 1994.  A Ford Mustang
owned by Warren Passley was recovered from the Million residence. 
Property belonging to victims of both the March 15 and March 16
burglaries was recovered from either the Mustang or the Million's
residence.
     Ms. Swingel identified Tammy Johnson's Thunderbird as the
vehicle that she observed the day her home was burglarized.  She
further testified that she could identify Warren Passley as one of
the intruders, but she did not get a good look at the second
person.  Deputy Sheriff Charles Rexford testified that the tread
patterns on the appellant's shoes were similar to the print
observed on the door of Ms. Swingel's residence.
     The jury found the appellant not guilty of the crimes
allegedly committed on February 7 and March 4.  Further, the trial
court refused to instruct the jury regarding the theft of property
charge arising out of the burglary of Kirk Cunningham's residence. 
The jury, however, found the appellant guilty on the twenty
remaining charges.
                 1. Sufficiency of the evidence
     A motion for a directed verdict is a challenge to the
sufficiency of the evidence.  Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995).  Preservation of an appellant's right to freedom
from double jeopardy requires a review of the sufficiency of the
evidence prior to a review of trial errors.  Davis v. State, 319
Ark. 460, 892 S.W.2d 472 (1995).  Consequently, we address
appellant's challenge to the sufficiency of the evidence prior to
considering his other assignments of trial error.  Byrum v. State,
318 Ark. 87, 884 S.W.2d 248 (1994).
     On appeal, the appellant contends the "record is void of
evidence physically placing him in any of the homes" and there is
no evidence that he "knowingly possessed any of the victims'
property with the intent to deprive them thereof."  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.  Williams v. State, supra.  Substantial
evidence is that which is forceful enough to compel a conclusion
one way or the other and pass 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, supra.  Further, circumstantial evidence
may constitute substantial evidence when every other reasonable
hypothesis consistent with innocence is excluded.  Nooner v. State,
322 Ark. 87, 907 S.W.2d 677 (1995).  Whether a reasonable
hypothesis exists is for the trier of fact to resolve.  Id.
     The jury was given, without objection, an accomplice liability
instruction.  See AMCI 2d 401.  Arkansas Code Annotated 
5-2-403(a) (Repl. 1993) provides that a person is an accomplice of
another person in the commission of an offense if, with the
requisite intent, he aids, agrees to aid, or attempts to aid the
other person in commission of the offense.  Purifoy v. State, 307
Ark. 482, 822 S.W.2d 374 (1991).  Under the accomplice liability
statute, a defendant may properly be found guilty not only of his
own conduct, but also by that conduct of his accomplice; when two
or more persons assist one another in the commission of a crime,
each is an accomplice and criminally liable for the conduct of
both. Id.  Finally, there is no distinction between principals on
the one hand and accomplices on the other, insofar as criminal
liability is concerned.  Id.
     Granted, we have stated that stolen goods recovered from a
dwelling shared by an accomplice is not sufficient corroboration
standing alone.  Daniels v. State, 308 Ark. 53, 821 S.W.2d 778
(1992).  However, possession of stolen property by the accused is
a proper circumstance to consider in determining whether there was
evidence tending to connect him with the crimes of burglary and
grand larceny.  Id.  Further, the presence of an accused in the
proximity of a crime, opportunity, and association with a person
involved in the crime in a manner suggestive of joint participation
are relevant facts in determining the connection of an accomplice
with the crime.  Thomas v. State, 312 Ark. 158, 847 S.W.2d 695
(1993); see also Redman v. State, 265 Ark. 774, 580 S.W.2d 945
(1979).  Finally, we have held that a person's flight to avoid
arrest may be considered as corroboration of evidence tending to
establish his guilt.  Ricks v. State, 316 Ark. 601, 873 S.W.2d 808
(1994); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992).
     The proof at trial was amply sufficient to establish the joint
nature of appellant's activities with the co-defendants.  The
appellant was apprehended with the three co-defendants, one of whom
was his wife who admitted her involvement in the crimes.  The
appellant was apprehended a short time after the "911" call by Ms.
Swingel, and Ms. Swingel identified the vehicle in which the
appellant was riding.  There was testimony that the tread patterns
on the appellant's shoes were similar to the print observed on the
door of Ms. Swingel's residence.  The appellant was staying in the
same home as the co-defendants.  At the time of his arrest, the
appellant was in possession of stolen property.  Further, property
taken in all the burglaries, with the exception of the burglary of
the Swingel home, was recovered either on the appellant, in the
Thunderbird, in the Mustang, or at the Million's residence. 
Finally, the appellant attempted to flee when he was confronted by
the police.  In short, the State was not required to prove that the
appellant physically entered the home of each victim with the
intent to deprive them of their property.
                    2. Severance of offenses
     Prior to trial, the appellant moved to sever the burglary
offenses on the basis that they were joined solely because they
were of similar character, but they were not part of a single
scheme or plan.  In denying the appellant's motion, the trial court
concluded the burglaries were part of a single scheme or plan.  At
trial, the appellant renewed his motion for severance prior to the
introduction of any testimony and again at the conclusion of the
State's evidence.  On appeal, the appellant contends that the trial
court abused its discretion in failing to sever the March 15, 1994,
burglaries from the March 16, 1994, burglaries in violation of Ark.
R. Crim. P. 22.2.
     Granting or refusing a severance is a matter within the
discretion of the trial court.  Richardson v. State, 314 Ark. 512,
863 S.W.2d 572 (1993).  Rule 22.2 of the Rules of Criminal
Procedure provides in part:
     (a) Whenever two (2) or more offenses have been joined
     for trial solely on the ground that they are of the same
     or similar character and they are not part of a single
     scheme or plan, the defendant shall have a right to a
     severance of the offenses.

     (b) The court, on application of the ... defendant other
     than under subsection (a), shall grant a severance of
     offenses:

          (i) if before trial, it is deemed appropriate to
     promote a fair determination of the defendant's guilt or
     innocence of each offense; or

          (ii) if during trial, upon consent of the defendant,
     it is deemed necessary to achieve a fair determination of
     the defendant's guilt or innocence of each offense.
(Emphasis supplied.)  Thus, a defendant has an absolute right to a
severance of offenses joined solely on the ground that they are of
same or similar character.  Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994).  However, in the instant case, the trial court
concluded the burglaries were a part of a common scheme or plan.  
     The appellant contends that there is no evidence that the
March 15 and March 16 burglaries were a part of a single plan or
scheme.  The appellant cites the cases of Bunn v. State, supra,
Clay v. State, supra, and Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), where this Court held there was no evidence of a single
scheme or plan.  In Clay, we noted that a single scheme or plan is
discussed in the 1987 Unofficial Supplementary Commentary to Rule
21.1 which provides:
     One who burglarizes an office on January 1 and a home on
     February 1 may be charged in the same information with
     both offenses, since they are "of similar character."  He
     would be entitled to a severance under Rule 22.2(a),
     however, unless the offenses were part of a single scheme
     or plan or criminal episode.  Even though roughly the
     same type of conduct might be argued to be involved in
     both burglaries, justifying joinder under Rule 21.1(b),
     the term "same conduct" in Rule 21.1(b) was probably
     intended to be read literally to refer to contemporaneous
     events and to permit joinder in a situation where, for
     example, a defendant robs three persons simultaneously.
The appellant contends that the burglaries committed on March 15
and March 16 were not contemporaneous events and there is no
evidence that the burglaries committed on March 16 were planned as
part of the burglaries committed on March 15.
     We hold there is a sufficient basis for the trial court's
denial of the motion for severance.  In Brown v. State, 304 Ark.
98, 800 S.W.2d 424 (1990), the appellant was charged with the
burglary of two convenience stores located in Fort Smith.  The
first burglary occurred at approximately 11:20 p.m. and the second
thirty minutes later.  This Court concluded the proximity in time
and place provided an ample base for denial of severance.  In
Kimberly v. State, 315 Ark. 653, 869 S.W.2d 692 (1994), the
appellant was charged with attempted rape, robbery, and theft
arising out of an incident with Brenda George Reed.  In the same
information, he was charged with attempted sexual abuse of Kimberly
Lutz.  The testimony revealed that at approximately 11:25 a.m. Ms.
Lutz was sitting in a park when the appellant attacked her.  Ms.
Reed testified that, on that same day, she was attacked several
blocks from the park at approximately 11:50 a.m.  Once again, we
concluded the proximity in time and place provided an ample basis
for denial of severance.
     In the instant case, six burglaries occurred during the day on
March 15 and five burglaries occurred prior to 2:00 p.m. on March
16.  The burglaries occurred in the same locale and during the day,
they were all residential burglaries, and in each case a door was
forced open.  The appellant's wife provided evidence of a scheme or
plan; she testified at trial that the burglaries were committed to
raise money so that "we can go to Florida and pick up my kids." 
Thus, the proximity in time and place and evidence of a single
scheme or plan provided an ample basis for the denial of severance. 
See Kimberly v. State, 315 Ark. 653, 869 S.W.2d 692 (1994).
                   3. Admission of "911" tape
     The appellant filed a motion in limine seeking to suppress the
tape of Ms. Swingel's "911" call.  The appellant asserted that the
tape was not accurate because when making the call Ms. Swingel
stated there were two men entering her home, but since making the
call, she has stated she only assumed it was two men. 
Consequently, the appellant contended the prejudicial nature of the
tape outweighed any possible probative value.
     At a suppression hearing, the appellant argued the tape was
not an accurate portrayal of the facts because Ms. Swingel was not
certain if the second intruder was a man.  The appellant further
argued the prejudicial effect of the tape far outweighed the
probative value because Ms. Swingel "obviously sounds frightened
and it's scary to listen to it."  The trial court found that the
tape was relevant because Ms. Swingel provided a description of the
vehicle and the police stopped Tammy Johnson's Thunderbird in
response to the call.  Two men fled from the vehicle, and the
appellant was apprehended within minutes.  Further, the trial court
found that the relevancy of the tape strongly outweighed any
prejudicial effect of the tape.  
     On appeal, the appellant asserts that the probative value of
the evidence was substantially outweighed by the prejudicial effect
(1) because of the frantic tone of Ms. Swingel's voice and (2)
because the tape had no probative value since there was no dispute
that someone entered Ms. Swingel's home, she confronted them, and
she dialed "911."  The appellant further submits the "911" tape is
not relevant because it does not state that he was involved.  Rule
403 of the Arkansas Rules of Evidence allows a trial court to
exclude relevant evidence if its probative value is substantially
outweighed by the danger of unfair prejudice.  Larimore v. State,
317 Ark. 111, 877 S.W.2d 570 (1994).  This weighing is a matter
left to the trial court's sound discretion and will not be reversed
absent a showing of manifest abuse.  Billett v. State, 317 Ark.
346, 877 S.W.2d 913 (1994).
     Granted, the State had clear proof that someone entered Ms.
Swingel's home without resorting to the "911" call; however, the
call served to explain why the police were in the area searching
for a blue Thunderbird.  Further, the appellant offers no authority
for how Ms. Swingel's alleged "frantic voice" inflamed the jury. 
Indeed, A.R.E. Rule 803(2), excited utterance, specifically
contemplates the admission of statements relating to a startling
event or condition made while the person was under the stress of
excitement caused by the event.  In short, the appellant has simply
failed to establish that the trial court abused its discretion.
     Affirmed.