Samuel West, Jr. v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

OLLY NEAL, Judge

DIVISION III

CACR00-987

MAY 16, 2001

SAMUEL WEST, JR.

AN APPEAL FROM THE SALINE APPELLANT COUNTY CIRCUIT COURT

v. [CR99-565]

STATE OF ARKANSAS HONORABLE GRISHAM A. APPELLEE PHILLIPS, JR., CIRCUIT JUDGE

AFFIRMED

A jury convicted Samuel West, Jr., of aggravated robbery and theft of property for which he was sentenced to fifty years' imprisonment in the Arkansas Department of Correction. West now challenges the sufficiency of the evidence to support his aggravated robbery conviction and argues that the trial court erred in admitting evidence of the victim's identification of him in a photographic line-up and by refusing to submit a robbery instruction to the jury as a lesser-included offense to the aggravated-robbery charge. We find no error and affirm.

At trial, Ronald Bowman testified that on the morning of October 25, 1999, he stopped at a Bryant carwash to wash his wife's Cadillac. Mr. Bowman stated that as he was washing the car a man approached him and demanded money. The man kept his right hand under his coat. Mr. Bowman gave the man his wallet and some change from his pockets. According to Mr. Bowman, the assailant then told him to "turn around and get out." After Bowman had walked approximately thirty-five to forty feet from the carwash, the robber demanded that Bowman return and get down on his knees. At that point, Bowman turned around and saw the man holding a gun and placing a clip in the bottom of the weapon. Bowman testified the assailant was standing under the light in the carwash and that he could clearly see the gun. Bowman testified that after the assailant told him to come back to the stall, he fled to a nearby motel. Over appellant's objection, the trial court allowed the State to introduce evidence of a photographic line-up in which Bowman identified appellant as the man who robbed him and an in-court identification of appellant as the assailant.

At the conclusion of the State's case-in-chief and again at the close of the evidence, West moved for a directed verdict on the aggravated-robbery charge, arguing that the State had not presented sufficient evidence to establish that he robbed Ronald Bowman either while armed with a deadly weapon or while representing by his words or conduct that he was so armed. West also requested a jury instruction for robbery as a lesser-included offense to aggravated robbery. The court denied both of West's motions for a directed verdict and refused to give the requested jury instruction. West now challenges these rulings as well as Bowman's identification of him on appeal.

Sufficiency of the Evidence

A motion for a directed verdict is a challenge to the sufficiency of the evidence,which we consider before any other points on appeal. Smith v. State, 68 Ark. App. 106, 3 S.W.3d 712 (1999). 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. Willingham v. State, 60 Ark. App. 132, 959 S.W.2d 74 (1998). Substantial evidence is that which is of sufficient force and character 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).

A person commits aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, he employs or threatens to immediately employ force upon another while armed with a deadly weapon or while representing by word or conduct that he is so armed. Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). Appellant argues that no evidence was presented to show that he was armed with a deadly weapon or that he represented that he was so armed. We disagree.

Initially, this case appears to be controlled by our supreme court's decision in Fairchild v. State, 269 Ark. 273, 600 S.W.2d 16 (1980). In Fairchild, the appellant rushed up to the victim and demanded her money. His right hand was hidden under his shirt. When the victim denied having any money on her person, the accused "grabbed her dress lightly and insisted that she was lying." The victim then turned to go inside aprivate club, "displaying only car keys in her hands." At that point Fairchild withdrew. After his arrest, Fairchild volunteered that he had attempted to induce the witness to believe that he was holding a gun. The supreme court, however, noted that the witness appeared not to "attach any special significance" to Fairchild's conduct nor to feel threatened by it. In fact, she did not mention the concealed hand until she was prompted by the prosecutor's leading question. Consequently, the court reduced the judgment from aggravated robbery to the lesser-included offense of robbery.

What distinguishes this case from Fairchild is Bowman's testimony that appellant brandished the weapon when he demanded that Bowman return and get onto his knees. Bowman's testimony that within an instant of taking his wallet and money while keeping one of his hands inside his coat, the assailant brandished a gun and demanded that Bowman come back and get onto his knees was sufficient for a jury to conclude that the assailant was indeed armed with a weapon at the time he robbed Bowman.

Photograhic and In-court Identifications

For his second point on appeal, West contends that the trial court erred in denying his motion to suppress the pretrial photographic-lineup identification on the ground that the procedure was unduly suggestive and in allowing an in-court identification because the identification was tainted by the pretrial identification. Appellant asserts that the lineup was prejudicially suggestive in that four of the six photographs were of such poor quality that they were practically useless and that those same four photographs pictured men significantly darker-skinned than the appellant. According to appellant, these limitationsreduced the probability that Bowman would identify appellant as his assailant from one in six to one in two.

At the hearing on appellant's motion to suppress, Bowman testified that his encounter with appellant lasted approximately five minutes in a well-lit carwash stall. Mr. Bowman further testified that about a week after the robbery, Detective Matt Griffin of the Bryant Police Department approached him with a photographic lineup and asked if he could identify the man who robbed him. Detective Griffin stated that Bowman identified appellant without any hesitation.

We will not reverse a trial court's ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Mills v. State, 322 Ark. 647, 910 S.W.2d 682 (1995). In connection with photographic lineups, if there are suggestive elements in the pretrial identification procedure making it all but inevitable that the victim will identify one person as the criminal, the procedure is so tainted that it violates due process. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). The appellant has the burden of showing that the pretrial identification procedure was suspect. Van Pelt v. State, 306 Ark. 624, 816 S.W.2d 607 (1991). It is for the trial court to determine whether there are sufficient indicia of reliability surrounding the identification to permit its use as evidence, and it is then for the jury to decide what weight the identification testimony should be given. Hunter v. State, 316 Ark. 746, 875 S.W.2d 63 (1994). In determining reliability the court considers the following factors: (1) the prior opportunity of the witness to observe the alleged act; (2)the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Van Pelt v. State, supra.

Applying the Van Pelt factors to the instant case, Bowman clearly had the opportunity to view appellant at the carwash. There was no prior identification of another person. Bowman's identification of appellant came within a week of the robbery, he was positive in his choice of appellant at the lineup, and he has never failed to identify appellant as his assailant. The only criterion that was not satisfied was the accuracy of Bowman's description of appellant following the robbery and this was due to an absence in the record of any pre-identification description.

Viewing the totality of the circumstances surrounding the photographic lineup and the in-court identification, we cannot say that the trial court clearly erred in permitting the in-court identification to proceed. We have held that a judgment of conviction will only be set aside when the photographic lineup is so suggestive and unreliable as to create a substantial possibility of misidentification. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). Bowman never wavered in his certainty that appellant was the man who robbed him and there is nothing in the record that diminishes the reliability of his identification.

Robbery Instruction

For his final point on appeal, appellant argues that the trial court erred in failing toallow a jury instruction for simple robbery. Appellant is correct in stating that an instruction on a lesser-included offense should be given if it is supported by the slightest evidence. See Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997). We have held, however, that we will affirm a trial court's decision to exclude a lesser-included offense instruction if there is no rational basis for giving the instruction. Id.

In the instant case, there is no conflicting testimony regarding whether or not appellant was armed at the time he committed the robbery. Unlike the decision in Henson v. State, 296 Ark. 472, 747 S.W.2d 560 (1988), cited by appellant, in which the robber did nothing more than place his hand inside his coat without verbally hinting that he had a gun, in this case, the appellant erased all doubt that he was armed by brandishing the weapon and proceeding to load it within minutes of demanding appellant's wallet and money. In light of this evidence, there was no rational basis for the trial court to give the requested instruction.

Affirmed.

Pittman and Bird, JJ., agree.