Kenneth Williams v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION IV

CACR 00-432

November 29, 2000

KENNETH WILLIAMS APPEAL FROM JEFFERSON COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE H.A. TAYLOR,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

In a jury trial, Kenneth Williams was found guilty of arson, kidnapping, aggravated robbery and theft of property, for which he was sentenced to respective terms of six, ten, five, and five years in prison. The court ordered the sentences to be served consecutively. On appeal, he contends that the trial court erred in admitting a toy gun into evidence and that there is insufficient evidence to support the conviction for arson. We affirm.

On the morning of December 5, 1998, Sharon Hence was getting money from an ATM machine at a bank in Pine Bluff when a man got into the car with her. The man pulled a gun and demanded that shewithdraw more money. The machine would not process an additional transaction, so the gunman told Ms. Hence to drive away, threaten ing to shoot her if she did anything wrong, like have a wreck. As they drove, he went through her purse, and ultimately he instructed her to drive onto a dead-end road. The gunman took her jewelry, which he placed into an eye-glass case, and ordered her out of the car. He then drove away, telling her that he would "leave the car somewhere." Ms. Hence's car was a black 1997 Mercedes. Also taken from her were two diamond rings, a herringbone bracelet, a watch, and $200.00 in cash.

On December 6, the Mercedes was found engulfed in flames on Hazel Street. It was said that accelerants had been used to start the fire and that the location of the car was a couple of blocks away from appellant's apartment.

On December 17, Ms. Hence identified appellant as the gunman from a photographic lineup. She testified at trial that she was positive that appellant was the man who had robbed her.

One of Ms. Hence's rings was found by the police in the trunk of appellant's vehicle. The proof of insurance for the Mercedes was found in a medicine cabinet in appellant's apartment. A toy gun was also found in appellant's apartment. It was in a kitchen trash can, underneath the plastic trash bag.

Greg Rhea, appellant's co-worker, testified that appellant tried to sell him two rings that were being kept in an eye-glasscase. Rhea went with appellant to have the rings appraised, but he did not buy one.

Appellant gave differing accounts when questioned by the police. At first he denied having any knowledge of a black Mercedes. Second, he said that he had seen one in the parking lot at his apartment. Third, appellant admitted that he had gotten into the car to listen to music.

At trial, appellant testified that he was at home at the time the robbery occurred. He said that a man named Andrew Griffen showed up at his apartment later that morning in a black Mercedes and that he and Wesley Evans rode around in the car with Griffen, who also had jewelry to sell. Appellant testified that he and Griffen drove to Little Rock and that he alone drove the car back to Pine Bluff where he left it in the parking lot of his apartment with the keys inside. He said that he saw Evans a short time later and that he assumed Evans drove away in the car. Appellant admitted that he had tried to sell jewelry to Greg Rhea and that he had taken the jewelry to be appraised. He further admitted that one of the rings had been placed in the trunk of his car.

Appellant first argues that the trial court erred in allowing the toy gun found in his apartment to be introduced into evidence. He contends that the toy gun was not shown to be the weapon used in the incident and thus was not relevant.

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Ark. R. Evid. 401. A trial court's ruling on relevancy is entitled to great weight and will not be reversed absent an abuse of discretion. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999).

Ms. Hence testified that the gun used in the robbery was small and that it was silver with a brown handle. She assumed that it was a revolver, but said that she was unable to see the whole gun. When presented with the toy gun, she said that it could not have been the one she saw. In Brooks v. State, 308 Ark. 660, 827 S.W.2d 119 (1992), there was some question as to whether a knife that was admitted into evidence was the one used in the attack. The appellant relied on the discrepancies in the testimony in arguing that the knife was not relevant. The supreme court disagreed, holding that the instrument used in committing a crime is patently relevant and that it was for the jury to resolve the inconsisten cies in the testimony and to decide whether it was the actual knife that had been used. Here, although Ms. Hence did not believe that the toy gun was the weapon used in the robbery, she admittedly did not get a good look at the gun. The gun she described and the toy gun were similar in color, and the toy gun was found hidden in a trash can. We find no abuse of discretion in the trial court'sruling that the exhibit was relevant. As in Brooks, it was for the jury to decide if it was the one used during the commission of the crimes.

Appellant next argues that there is insufficient evidence to support the conviction of arson. He contends that the evidence is not substantial because no one saw him set the fire or saw him near the car the day it was burned.

When reviewing the sufficiency of the evidence, we view all the evidence and the reasonable inferences capable of being drawn therefrom in the light most favorable to the State. Anderson v. State, 62 Ark. App. 1, 967 S.W.2d 569 (1998). The evidence, whether direct or circumstantial, must be of sufficient force that it compels a conclusion one way or the other without resort to speculation and conjecture. Edwards v. State, 40 Ark. App. 114, 842 S.W.2d 459 (1992). We make no distinction between circumstan tial and direct evidence when reviewing the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). Guilt may be proved in the absence of eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999).

Circumstantial evidence, when properly connected, can furnish a substantial basis for an arson conviction. See Bush v. State, 250 Ark. 224, 464 S.W.2d 792 (1971); Carpenter v. State, 204 Ark. 752, 164 S.W.2d 993 (1942); Armstrong v. State, 45 Ark. App. 72, 871 S.W.2d 420 (1994). Whether every other reasonable hypothesis but that of guilt is excluded is for the jury to determine. Abbott v. State, 256 Ark. 558, 508 S.W.2d 733 (1974). It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974). In this case, appellant was identified as the person who stole the car. The car was found burning a couple of blocks away from appellant's residence. Appellant was the person who possessed the motive to burn the car in order to destroy evidence of his being inside of it. We hold there is substantial evidence to support the guilty verdict.

Affirmed.

Bird and Stroud, JJ., agree.