Billy Russell Smith, Jr. v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION III

BILLY RUSSELL SMITH, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-806

JUNE 13, 2001

APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT

[NO. CR 99-4-2(B)]

HONORABLE SAMUEL B. POPE, CIRCUIT JUDGE

AFFIRMED

A jury sitting in Chicot County Circuit Court convicted the appellant, Billy Russell Smith, of residential burglary and theft of property. Appellant was sentenced to 120 months in the Arkansas Department of Correction. On appeal, he argues that the trial court erred in not granting his motion for directed verdict, and not suppressing two search warrants and searches. We find no error, and affirm.

Appellant's first point on appeal is that the trial court erred in denying his motion for a directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence which we consider before any other points on appeal. Dye v. State, 70 Ark. App 329, 17 S.W.3d 505 (2000). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. In determining whether a finding of guilt is supported by substantial evidence, we review the

evidence, including any that may have been erroneously admitted, in the light most favorable to the verdict. Id. Substantial evidence is that which is of sufficient force that it will, with reasonable certainty, compel a conclusion one way or the other, without resort to speculation or conjecture. Dodson v. State, 341 Ark. 41, 14 S.W.3d 489 (2000). It is well settled that it is the province of the fact-finder to determine the weight of evidence and the credibility of witnesses. Johnson v. State, 337 Ark. 196, 987 S.W.2d 694 (1999).

Appellant argues that the evidence was insufficient to convict because the only evidence connecting him to the commission of a crime was provided by his wife, Jennifer Hilliard Smith, an accomplice. When the State relies on testimony of an accomplice to prove a felony, the accomplice's testimony must be corroborated by other evidence tending to connect the defendant to the commission of the offense. Ark. Code Ann. § 16-89-111(e)(1) (1987). In order to be sufficient, the corroborating evidence must independently establish the commission of the offense and connect the defendant with it. Henderson v. State, 337 Ark. 518, 990 S.W.2d 530 (1999). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. Circumstantial evidence qualifies as corroborating evidence, but it must be substantial, although not so substantial in and of itself to sustain a conviction. Id. The inquiry on appeal is 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).

This case arose form the burglary of a house owned by David Wells. On December24, 1998, John Mark Johnson went to check on Mr. Wells's home, as Mr. Wells was on vacation in Colorado. Mr. Johnson testified that the house was fine that day, but when he returned the next afternoon he discovered that the house had been broken into through the back door. A large Winchester gun safe and other items were missing. Mr. Johnson testified that it appeared that the gun safe had been pushed through a doorway, that it also appeared that a chain had been hooked to the safe, and that the safe had been drug across the yard to the road. Mr. Johnson testified that he saw tractor prints that coincided with where the safe had been drug.

Mrs. Jennifer Hilliard Smith, appellant's wife, and an accomplice, testified that she, appellant, and two of appellant's three sons, broke into the Wells's house and stole a gun safe, jewelry, and shells. She testified that while appellant and his two sons, Timmy and Tommy, broke into the Wells's house, she stood at the back door. She stated that they got the safe halfway out in the yard but were not able to lift it onto appellant's pickup truck. Appellant and his two sons then went to Louis McCallie's farm, where appellant worked, and got McCallie's tractor. Mrs. Smith testified that she waited at their home, and from her front door, she saw the tractor go down the road toward the Wells's house, and about an hour later, appellant and his sons returned, pulling the safe with the tractor. She testified that appellant told her that he opened the safe by backing the tractor over it. Further, she testified that after they got the guns in their house, she, appellant, and Tommy, went to the Big Ben store on McCallie's tractor. Due to the ice storm, neither their house nor the Big Ben store had power. Mrs. Smith testified that she and appellant went to Monticello, on January 2,1999, to rent a mini-warehouse to store the stolen items.

Looking at the evidence other than the testimony of Ms. Smith, the State presented evidence that the storage rental agreement listed Jennifer L. Hilliard, Mrs. Smith's maiden name, as the lessee. The agreement listed the authorized persons to enter as Bill Smith only. Ms. Becky Hilliard, Mrs. Smith's first cousin, testified that one night around Christmas when ice was on the ground, appellant, Mrs. Smith, and one of the boys came to the store on a large tractor while she was working. Ms. Hilliard testified that she recalled the electricity being off that night. Deputy Ed Gilbert of the Chicot County Sheriff's Office testified that paint the same color as the gun safe was on the tractor's "quick hitch," but he was unable to obtain a scraping of the paint. Further, Deputy Gilbert testified that his investigation led him to a mini-storage facility in Monticello, and while executing a search warrant, he found twenty-three guns in the storage unit. Serial numbers on the guns matched those for the stolen guns from the Wells's house. Deputy Gilbert testified that while executing a second search warrant, he found Wells's gun safe on appellant's property, buried just outside the lawn area. Gilbert further testified that the safe was covered with garbage sacks and other debris. Based on this evidence, we hold that there was sufficient evidence corroborating Mrs. Smith's testimony for the trial court to deny appellant's motion for directed verdict.

Second, appellant argues that the trial court erred in not finding the January 26, 1999, search warrant to be defective. Initially, we note that appellant suggests in his points on appeal and his argument heading he is also challenging a search warrant issued on May 10, 1999, authorizing the search of his home. However, his argument on appeal does notaddress how that search warrant was defective. As such, appellant has not sufficiently raised the issue of the validity of the May 10, 1999, search warrant. Thus, we do not address it. With respect to the January 26, 1999, search warrant, appellant argues that Deputy Gilbert's affidavit seeking a warrant to search the mini-storage in Monticello, contained material false statements that invalidated the warrant and the subsequent search of the storage unit. Suppression of evidence will not be appropriate when a law-enforcement officer acts in good-faith reliance on a facially valid warrant. United States v. Leon, 468 U.S. 897 (1984). However, this good-faith exception will not apply when the issuing magistrate was misled by an affiant who either knew that the information given was false or had acted in reckless disregard of its truth and falsity. Id. The court may not look to facts outside the affidavit to determine probable cause, when assessing good faith, but it can and must look to the totality of the circumstances, including what the affiant knew, but did not include in the affidavit. Sims v. State, 333 Ark. 405, 969 S.W.2d 657 (1998).

In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court, in addressing a defendant's right to challenge the veracity of an affidavit for a search warrant, held:

[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant mustbe voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.

Id. at 155-56. When the Fourth Amendment demands a showing sufficient to comprise probable cause the assumption is that there will be a truthful showing. See id. at 164-65. The Supreme Court, in addressing what is meant by a truthful showing, stated:

This does not mean `truthful' in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be `truthful' in the sense that the information put forth is believed or appropriately accepted by the affiant as true.

Id. at 165. We hold that Deputy Gilbert's affidavit contained no statements that were false or in reckless disregard for the truth.

Deputy Gilbert's affidavit stated that he had reason to believe that guns, jewelry, and a Winchester safe were located in GGG Mini Storage, Monticello Mini Storage. Deputy Gilbert described the facts leading him to believe that the property was concealed there as follows: "A confidential informant known to Chicot County Sheriff [sic] Dept and has proven reliable in the past stated the guns and jewelry and safe stolen in a Res. Burg. of David Well Res, Dermott, AR, 12/24-25/98 was hidden in this warehouse." Appellant argues that the affidavit is flawed because Deputy Gilbert did not reveal that the confidential informant did not contact him, but contacted only Sheriff White, and because the affidavit suggested that the location of the specific storage unit was provided by the informant, ratherthan discovered during Deputy Gilbert's subsequent investigation. Where as here, the affiant did not state that he personally knew the informant, and the affiant asserted only that he had reason to believe that the information contained in the affidavit was true, then an officer's failure to disclose that information contained in the affidavit came from another officer does not constitute reckless disregard for the truth. State v. Rufus, 338 Ark. 305, 993 S.W.2d 490 (1999).

Appellant also argues that the affidavit was defective because it contained only a conclusory statement that the informant was reliable, without providing any explanation as to why the informant was considered reliable. We hold that the even though the affidavit did not explain why the informant was considered to be reliable, that the search was still valid under the Leon good-faith exception because the officers relied on a facially valid warrant. See Jackson v. State, 291 Ark. 98, 722 S.W.2d 831 (1987).

Appellant argues that the failure of Deputy Gilbert to include the specific time in his affidavit that the informant saw the stolen goods in the storage unit caused the warrant and subsequent search to be defective. We do not hold that the absence of a reference to time in an affidavit makes the subsequent search warrant automatically defective. Herrington v. State, 287 Ark. 238, 697 S.W.2d 899 (1985). Rather, we look to the four corners of the affidavit to determine if we can establish with certainty the time during which the criminal activity was observed. Id. If the time can be inferred in this way, then the officer's objective good-faith reliance on the magistrate's assessment will cure the omission. Id. In this case, Deputy Gilbert's affidavit stated that the Wells's house had been burglarized on December24, 1998, or December 25, 1998. Deputy Gilbert sought the search warrant on January 26, 1999. Thus, it can be inferred that the informant obtained the information sometime between December 24, 1998, and January 26, 1999. Therefore, we hold that the failure to state in the affidavit the specific time that the informant saw the stolen goods in the storage unit does not invalidate the warrant or the subsequent search.

Appellant asserts several other problems with Deputy Gilbert's affidavit and the search warrant. Appellant argues that Gilbert did not reveal to the magistrate that the brownish marks on the "quick hitch" of the tractor were so faint that they were like "dust," and he was unable to collect anything for analysis. Also, appellant asserts that Gilbert never talked to a caller who worked at the fuel desk at the Big Ben Truck Stop who called Investigator Charles Watson on December 28, 1998. Further, appellant asserts that David Wells called the Sheriff's office and reported that he saw appellant's son riding a bicycle in front of his house wearing a pair of boots like the boots Wells had stolen from his home, yet there was no mention of any boots in Wells's loss report. We hold that all of these challenges to Deputy Gilbert's affidavit are without merit as they go to the issue of credibility and not to probable cause to search the storage unit. Nor do the challenges suggest that Officer Gilbert did not act in good faith on the issuance of the warrant. The credibility of evidence presented at a suppression hearing is for the trial judge to determine, and not for this court to decide on appeal. Stegall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000). Therefore, we hold that the trial judge did not err in denying appellant's motion to suppress, as the search was performed pursuant to a valid search warrant.

Affirmed.

Robbins and Griffen, JJ., agree.