Timothy T. Harris v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION II

TIMOTHY T. HARRIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-563

February 21, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 1997-86]

HONORABLE DAVID B. BOGARD,

CIRCUIT JUDGE

AFFIRMED

The appellant, Timothy Tyrone Harris, was convicted of two counts of aggravated robbery and two counts of theft of property in Pulaski County. At the conclusion of a jury trial, the court merged the theft of property convictions into the aggravated robbery convictions and sentenced appellant to twenty-four years in the Arkansas Department of Correction. On appeal, appellant argues that the trial court erred in denying his motion for directed verdict on the basis that there was insufficient evidence to sustain a conviction of aggravated robbery and theft of property. We affirm.

On November 23, 1998, two men entered the Phillips 66 Station on Chicot Road in Pulaski County and took approximately $350 from the store along with a patron's purse. Both of the men were wearing masks with large holes around the face area, and one of the

men was armed. There were two people inside the store at the time of the robbery, Mr.Laddie Ivy, the station clerk, and Ms. Theresa Walker, Mr. Ivy's girlfriend at the time. Following the robbery, officers apprehended two men in a vehicle, one of which was Mr. Main, who had just completed the robbery. However, appellant was not immediately apprehended. At trial, both Mr. Ivy and Ms. Walker identified appellant as one of the two men who robbed the station that evening. Furthermore, testimony was given by Detective Lynda Keel regarding her interview of Mr. Main who implicated appellant in the crime from a photo spread. Testimony provided by appellant's witnesses, placed appellant in Brinkley, Arkansas, on the date of the robbery. The defense counsel moved for a directed verdict after the close of the State's case and renewed his motion at the close of all the evidence. Both motions were denied.

Our supreme court has stated that the test for determining the sufficiency of the evidence is whether there is substantial evidence to support the conviction. Arnett v. State, 342 Ark. 66, 27 S.W.3d 721 (2000) (citing Britt v. State, 334 Ark. 142, 974 S.W.2d 436 (1998)). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. (citing McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999)). On review, we need only consider evidence that is favorable to the State. Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999) (citing Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992)).

Both Mr. Ivy and Ms. Walker testified at trial that appellant was one of the men who robbed the station that evening. Specifically, Mr. Ivy testified as to the large holes in the mask that appellant was wearing, which helped Mr. Ivy identify appellant. Mr. Ivy alsotestified as to appellant's complexion and eye color. Ms. Walker testified that her view of the activities between appellant and Mr. Ivy was not obstructed and allowed her to see the entire transaction between the two. She was also able to give a description of appellant's face because appellant was relatively close to her; at one point during the robbery he was close enough for her to smell his breath. Although Mr. Main testified at trial that appellant was not the man who robbed the station with him, Detective Lynda Keel testified as to Mr. Main's identification of appellant through a photo spread prior to trial. After weighing all of the testimony, the jury convicted appellant of the alleged crimes.

Appellant contends that the evidence of identification was insufficient to prove that he was one of the individuals who entered the Phillips 66 Station and robbed Mr. Ivy and Ms. Walker. Although conflicting testimony was given at trial as to the identification and location of appellant on the evening of November 23, 1998, we do not pass on the credibility of witnesses. See Johnson v. State, 70 Ark. App. 343, 19 S.W.3d 66 (2000) (citing Mann v. State, 291 Ark. 4, 722 S.W.2d 268 (1987)). That duty is left to the trier of fact. Id.

In the case at bar, there was ample evidence before the jury to support a conviction of aggravated robbery and theft of property. Both robbery victims identified appellant as the individual who entered the station and robbed them. Moreover, Mr. Main informed Detective Keel that appellant robbed the station with him on November 23, 1998, by identifying appellant in a photospread. When considered in light most favorable to the State, there was substantial evidence to support appellant's conviction.

Affirmed.

Pittman and Roaf, JJ., agree.