Boyd v. State

Donald Wayne BOYD v. STATE of Arkansas

CACR 95-740                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
                 Opinion delivered May 29, 1996


1.   Evidence -- sufficiency of in criminal case -- substantial
     evidence discussed. -- In resolving the question of the
     sufficiency of the evidence in a criminal case, the court
     views the evidence in the light most favorable to the appellee
     and affirms if there is substantial evidence to support the
     decision of the trier of fact; substantial evidence is that
     which is of sufficient force and character that it will, with
     reasonable certainty and precision, compel a conclusion one
     way or the other, without resorting to speculation or
     conjecture.  

2.   Criminal law -- theft of car was continuing offense until
     appellant was apprehended -- evidence was sufficient to
     convict appellant of aggravated robbery. -- Where appellant
     admitted that he took the victim's car from his driveway and
     fired a shot while leaving, the theft began when appellant got
     into the victim's car and continued until appellant hit a
     telephone pole and was apprehended by police; there was
     substantial evidence upon which to convict appellant of
     aggravated robbery.



     Appeal from Pulaski Circuit Court; Chris Piazza, Judge;
affirmed.
     William R. Simpson, Jr., Public Defender, by:  C. Joseph
Cordi, Jr., for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Melvin Mayfield, Judge.

*ADVREP*CA4*
                          DIVISION III



                                        CACR 95-740


                                             MAY 29, 1996


DONALD WAYNE BOYD                  AN APPEAL FROM THE PULASKI 
                                   COUNTY CIRCUIT COURT
               APPELLANT

VS.                                HON. CHRIS PIAZZA, JUDGE
                                        
STATE OF ARKANSAS                  AFFIRMED

               APPELLEE




                     Melvin Mayfield, Judge.


     Appellant Donald Wayne Boyd was found guilty by a jury of
aggravated robbery and theft of property.  His only argument on
appeal is that the evidence was insufficient to convict him of
aggravated robbery.
     In resolving the question of the sufficiency of the evidence
in a criminal case, we view the evidence in the light most
favorable to the appellee and affirm if there is substantial
evidence to support the decision of the trier of fact.  Ryan v.
State, 30 Ark. App. 196, 786 S.W.2d 835 (1990).  Substantial
evidence is that which is of sufficient force and character that it
will, with reasonable certainty and precision, compel a conclusion
one way or the other, without resorting to speculation or
conjecture.  Williams v. State, 298 Ark. 484, 768 S.W.2d 539
(1989); Ryan, supra.  
     At trial, Johnny Ray Johnson testified that on May 4, 1994,
between 3:45 and 4:00 a.m., he woke up to see his car backing out
of the driveway.  He said he went out on the front porch and
yelled, "Hey, where are you going with my car?"  He then heard a
shot, which he thought was directed at him, and he ran back into
the house.  Johnson said it was too dark for him to see how many
people were in the car, and he could not determine whether they
were black or white, male or female.  
     After the car left, Mr. Johnson went across the street to his
mother's house.  She had heard the shot and had seen the commotion. 
They got into her car and went looking for his car.  They came upon
some police officers and reported that the car had been stolen. 
Johnson described his car as a black, four door, 1986 Fleetwood
Cadillac, with the right headlight broken out, and the license
number OYT-517.  Johnson said he bought the car in early 1992 for
about $9,000.  He said it was in excellent condition except for the
broken headlight.  Johnson also testified that the car was not for
sale, but he had been offered as much as $3,500 for it.  Later, the
police called him and said they had located his car; however, it
was demolished.   
     Lucille Robinson, Johnson's mother, corroborated his
testimony.  She testified that she had got up about 4:00 a.m. to go
to the bathroom and heard a shot.  She looked out the window and
saw her son's car back out of his driveway, hit the opposite curb,
go forward and hit the other curb, and drive off.  She said she
knew her son was not driving like that, and she saw him on his
front porch.  They then went to look for the car and reported the
theft to police.
     Detective Chris Oldham, a Little Rock police officer,
testified that he heard a police broadcast about the stolen car at
approximately 4:00 a.m., and he saw the car coming toward him
shortly thereafter.  He described a high-speed chase through the
eastern section of Little Rock in which the stolen vehicle ran a
red light and a stop sign.  The chase ended when the driver lost
control of the vehicle and slammed into a telephone pole.  The
officer testified that as he approached the vehicle, a black
handgun was thrown from the driver's side into the field adjacent
to the telephone pole.  According to Detective Oldham, the driver
had a cut on his forehead but was talking and alert, and appeared
to be in good condition.  He got the driver out of the vehicle,
handcuffed him, and placed him in a police car to be transported to
the police station.  He then retrieved the gun, which was a .45
caliber automatic weapon with two rounds in the clip and one in the
chamber.  Detective Oldham identified the appellant as the driver
of the stolen car.  
     Detective Marty Garrison testified that he came into contact
with appellant when he was brought to the Little Rock police
station in the early morning hours of May 4, 1994.  Garrison said
he advised appellant of his Miranda rights and got the impression
that appellant understood them, but appellant refused to sign the
rights form or the waiver, and said, "I'm not going to sign
anything," but said, "I'll tell you what happened," and asked,
"What do you want to know?"  In response to the officer's
questions, the appellant said that he got the gun from the car but
did not shoot at the owner.  He said he "shot in the air."  
Detective Garrison said appellant answered all his questions and
never asked for an attorney.  
     When the State rested, counsel for appellant made a motion for
directed verdict on both counts.  He said that when the shot was
fired the theft was completed, and he was not resisting immediate
apprehension.  He contended that the most the evidence would
support was a theft and possibly an aggravated assault.  The motion
for directed verdict was denied, and the defense then rested and
renewed its motion for directed verdict.  
     Arkansas Code Annotated  5-12-102 (Repl. 1993) defines
robbery as follows:
          (a) 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.

Ark. Code Ann.  5-12-101 (Repl. 1993) defines physical force as
"any bodily impact, restraint, or confinement or the threat
thereof."  Ark. Code Ann.  5-12-103, Aggravated robbery, provides:
          (a) A person commits aggravated robbery if he
     commits robbery as defined in 5-12-102, 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.

     On appeal appellant argues:
     It is clear that the appellant neither used nor
     threatened to use the gun while taking possession of the
     car.  Mr. Johnson was asleep inside his house when the
     car was taken.  The appellant was already in possession
     of the car by the time Mr. Johnson was aware that it was
     being stolen.  Therefore, the offense of theft was
     completed before the shot was fired.

          There was evidence that the appellant shot the gun
     when Mr. Johnson yelled for him to stop.  However, Mr.
     Johnson was not, at that time, attempting to apprehend
     the appellant.  He was on his porch when he heard the
     shot.  The only action that he had taken at that point
     was to yell, "Hey, where are you going with my car[?]" 
     Yelling at a thief does not amount to an attempt to
     apprehend one.  Therefore, if the appellant had fired a
     shot at that point he did not do so in an attempt to
     resist apprehension because nobody was attempting to
     apprehend him at that point.  [Transcript references
     omitted.]

     Appellee contends that theft is a continuing offense according
to Findley v. State, 300 Ark. 265, 778 S.W.2d 624 (1989), and Hall
v. State, 299 Ark. 209, 772 S.W.2d 317 (1989).  In Findley, the
appellant argued that the state's proof established no more than a
theft by Findley of Phillips' $1,700 followed by a murder four days
later -- too distant, he maintained, for compliance with the
requirement of the robbery statute that the use of force occur
"immediately thereafter."  The Arkansas Supreme Court replied:
     But, as we have noted, the evidence was such that the
     jury could infer that Findley killed Phillips either to
     obtain the funds or to silence Phillips when he demanded
     the return of his money. In Hall v. State, 299 Ark. 209,
     772 S.W.2d 317 (1989), we considered an analogous
     challenge to the applicability of the first degree murder
     statute, Ark. Code Ann.  5-10-102 (1987), which defines
     the offense as including a death occurring during
     "immediate flight" from the commission of a felony. Hall
     was seen by the police driving a car which had been
     stolen five days earlier. Hall sped away and in the
     ensuing chase he struck and killed a pedestrian. Hall was
     convicted of first degree murder, theft by receiving and
     fleeing. His arguments on appeal included the proposition
     that because the theft had occurred five days earlier, he
     was not in "immediate flight" from the commission of a
     felony. This court rejected that premise on the reasoning
     that theft by receiving was a continuing offense, citing
     State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 (1978).

300 Ark. at 274, 778 S.W.2d  at 627.
     Relying on these cases appellee submits that appellant is in
error in his assertion that the theft had ended when he employed
the deadly weapon since theft is a continuing offense.  In
addition, appellee argues, even if it is assumed that the theft
ended before appellant utilized his deadly weapon, viewing the
evidence in the light most favorable to the State, there is
substantial evidence that the deadly weapon was employed to resist
apprehension.  Although appellant contends that the owner was not
attempting to apprehend him, it is certainly a fair inference that
appellant employed the weapon as a means of avoiding arrest.
     Appellant admitted he took Johnson's car from his driveway and
fired a shot while leaving.  We cannot break crimes down into
component parts microseconds apart.  The theft began when appellant
got into the victim's car and continued until appellant hit the
telephone pole and was apprehended by police.
     Affirmed.
     Cooper and Robbins, JJ., agree.