Kevin Douglas Casey v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 00-388

December 20, 2000

KEVIN DOUGLAS CASEY APPEAL FROM HOT SPRING COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE PHILLIP H. SHIRRON,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Kevin Douglas Casey was found guilty by a Hot Spring County jury of aggravated robbery, and he was sentenced to a term of forty years in prison. He contends on appeal that there was insufficient evidence to corroborate the testimony of an accomplice and that the trial court erred in denying his mistrial motion. We affirm.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Franks v. State, 342 Ark. 167, ___ S.W.3d ___ (2000). Evidence is substantial if it is of sufficient force and character to compelreasonable minds to reach a conclusion and pass beyond suspicion and conjecture. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999).

On April 12, 1999, shortly before 7:00 p.m., there was an armed robbery at Don's Bait Shop in Malvern. Donald Stanley, the owner of the store, testified that about fifteen minutes before the robbery he went outside to take out the trash and saw a man walking toward him who turned and went to a white car. Mr. Stanley went back inside and was visiting with his brother-in-law and sister, Butch and Linda Finyard, when this same man came into the store asking to use the restroom. The Finyards left while the man was in the restroom, and the man left as well. However, the man returned moments later with a gun and demanded the money out of the cash register and Stanley's pockets. Stanley testified that about $145.00 in cash and $30.00 in change were taken from the register. He said that there was a twenty-dollar bill, somewhere between fifteen and twenty five-dollar bills, and about twenty-five one-dollar bills in the cash register. He had $188.00 in his pockets, consisting of a one-hundred-dollar bill, three twenties, two tens, and three ones. He said that the one-hundred-dollar bill had writing on it.

Stanley was later asked to identify two suspects the police were detaining on the bypass in Hot Springs. He identified Jason Finney as the man who had robbed him at gunpoint. Stanley also identified as his own a one-hundred-dollar bill taken from Finney's pocket, because of the writing on it. Stanley said that he had seen a man in the store that morning who was wearing the same clothes as the second suspect, the appellant. He said that he could not positively identify the appellant, but he believed appellant to be the same man he had seen in the store.

Linda Finyard testified that when she and her husband left, they drove around the building to see where the man wearing a long black coat who had been in the store had gone and saw a white car. She said there were two people inside and that the driver had long hair. She got the license plate number and then drove away. A short time later she and her husband drove back to the store and saw the man in the coat running out of the store. She and her husband followed the white car for a while. She said that appellant's hair style was consistent with the person she had seen driving the car.

Butch Finyard testified that he had been in the store that morning and had seen a man wearing an Emmitt Smith football jersey with the number 22 on it. He was asked if he could identify the suspects the police were holding in Hot Springs. Finyard said one of the guys was wearing an Emmett Smith jersey and was the same manhe had seen in the store earlier. He identified appellant as that person.

Officer Jim Henson of the Hot Springs Police Department testified that he heard a dispatch that evening to be on the lookout for a white Chevy Corsica with license plate number 694 CGG. At about 7:35 p.m., he saw a car matching that description, and he initiated a stop of the vehicle on the bypass. He said that Jason Finney was driving the vehicle and that appellant was the passenger.

Jerry McAnear, an investigator with the Malvern Police Department, responded to the traffic stop. He testified that both Finney and appellant had a wad of cash. Finney had $257.00 in cash. McAnear removed $152.00 from appellant: seventeen five-dollar bills; two twenties; a ten; and seventeen one-dollar bills.

Jason Finney testified that he had been with appellant that day since the morning. He said that they had been to the store several times that day to check it out and that appellant had gone inside the first time. Finney said that it was appellant's idea to rob the store and that he did not want to, but that appellant forced him at gunpoint to commit the robbery. He said that appellant was driving when they left the store and that they drove to a filling station to get gas and to split the money. Finney testified that appellant wanted all of the small bills when they were dividing the cash.

Appellant argues that there is insufficient evidence to corroborate the testimony of Finney, the accomplice. We disagree.

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant in the commission of the crime. Ark. Code Ann. § 16-89-111(e)(1) (1987). The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to a substantial degree to connect the defendant in the commission of the crime. Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470 (1994). In other words, the test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). On appeal, we must determine whether there is substantial evidence to support the jury's finding that the corroborating evidence was sufficient. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992).

Here, appellant was identified as a person who had been in the store prior to the robbery, and his hair style matched that of the driver of the get-away car. Appellant was apprehended in the get-away car about thirty minutes after the robbery took place. When he was taken into custody, he had a large wad of cash in denominations that matched those taken from the store. We cannot say that there is no substantial evidence to support the jury's finding.

Appellant's next argument is based on testimony uttered by Jason Finney. During Finney's testimony, the prosecutor asked him if he knew why appellant wanted the small bills. Finney responded, "No, sir, I don't know. I figured it was because - okay, he had already done this kind of stuff before, so if we had got -" Appellant objected to this testimony that suggested that appellant committed other criminal acts, and he moved for a mistrial. The trial court agreed with the prosecutor that the testimony was unsolicited and denied the motion for a mistrial. Appellant declined the court's offer to give an admonition, saying that it would only cause more confusion to the jury.

A mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing trial or when the fundamental fairness of the trial itself has been manifestly affected. Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). A mistrial is only appropriate where the error is beyond repair and cannot be corrected by any curative relief. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). A trial court is granted wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of thatdiscretion or manifest prejudice to the complaining party. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991).

There is always some prejudice that results from the mention of a prior bad act in front of the jury. Strawhacker v. State, 304 Ark. 726, 804 S.W.2d 720 (1991). In instances where the infraction creates minimal prejudice, the proper remedy is an objection to the evidence and an admonition or instruction to the jury. Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992). The supreme court has held that remarks, which amount to inadvertent references to previous illegal conduct, may be cured by an admonition from the trial court ordering the jury to disregard the statement. Hall v. State, 314 Ark. 402, 862 S.W.2d 268 (1993). Here it appears that the prosecutor did not deliberately set out to elicit this testimony, and the brief remark made by the witness was speculative in nature. We believe an admonition would have cured any prejudice resulting from the comment, and thus we find no abuse of discretion in the trial court's denial of the mistrial motion.

Affirmed.

Pittman and Neal, JJ., agree.