Cherlene Foley v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION III

CHERLENE FOLEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-00003

September 19, 2001

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY, ARKANSAS

[CR-98-3086, CR 99-2784]

HON. DAVID BOGARD, CIRCUIT JUDGE

AFFIRMED

Appellant, Cherlene Foley, was on probation at the time she was charged with possession of cocaine with the intent to deliver. In a bench trial, she was convicted of this charge and sentenced to ninety-six months' imprisonment in the Arkansas Department of Correction. Additionally, her probation was revoked and she received a sentence of sixty months' imprisonment on her prior conviction. The trial judge ordered that the sentences run concurrently. On appeal, appellant argues that the State failed to offer sufficient evidence to support her conviction and the subsequent probation revocation. We disagree. The State presented testimony from three witnesses, Sergeant David Grant of the Pulaski County Sheriff's Department, Rodrick Harris, and Jacquelyn Brown. Harris and Brown were granted immunity in exchange for their testimony.

Grant testified that on May 5, 1999, he initiated a traffic stop involving a white Chevrolet Corsica; the vehicle had a defective taillight. Rodrick Harris was driving the car, and Jacquelyn

Brown and Cherlene Foley were passengers. Sergeant Grant conducted an ACIC check on all occupants of the vehicle. The check revealed a felony warrant issued on Foley and a misdemeanor warrant issued on Brown. Grant took the passengers into custody. After being seated in his police car, the women advised Grant that their purses were still in Harris's vehicle and as Grant testified "they asked if I would retrieve their purses for them since they were going to jail."

Grant further testified that when he went to retrieve the purses, he found a plastic baggie with an off-white, rock-like substance that he suspected to be crack cocaine1 "laying on the floor next to the purse" that was stored in the front floorboard. The purse in the front floorboard belonged to Jacquelyn Brown. The substance was divided into small squares, which Grant testified were each worth approximately twenty dollars. Appellant was taken to jail. During the booking, eleven hundred dollars (thirty $20.00 bills, two $50.00 bills, and four $100.00 bills) was recovered from appellant's bra.

The State's second witness, Jacquelyn Brown, testified that on May 5, 1999, she had stolen clothes for appellant in exchange for crack cocaine. Brown testified that, after receiving the crack, she observed appellant conduct various cash drug transactions. She further testified that the proceeds from the sales were placed in appellant's bra. Approximately one hour later, Brown got into a vehicle driven by Rodrick Harris. Brown testified that appellant requested a ride to the Motel 6. In route to the motel, a police officer began to follow Harris's vehicle, and Brown testified that "[a]bout that time something flew from the back and hit the dashboard in the front." Finally, Brown testified that there was no cocaine in the front seat prior to the object being thrown from the back of the car.

The State's final witness, Rodrick Harris, testified that he saw appellant throw an object from the back seat after his car was stopped by the police. He also testified that appellant and her boyfriend threatened to kill him (and his family), if he or Ms. Brown refused to claim the drugs as their own.

In appellant's defense, her sister testified that she had recently given appellant $200.00, all in $20.00 bills. She further testified that appellant received more money from both her brother and her mother and that appellant "kept her money on her at all times." For evidence to be sufficient, there must be substantial evidence to support the verdict; evidence is substantial if it is forceful enough to compel a conclusion one way or the other without having to resort to speculation and conjecture. Heard v. State, 71 Ark. App. 377, 32 S.W.3d 30 (2000). In determining whether evidence is substantial to support a conviction, the appellate court views the evidence in the light most favorable to appellee, only considering evidence that supports the guilty verdict. Id.

Appellant contends that the State failed to meet its burden of proving appellant's guilt with sufficient evidence. Specifically, appellant argues that the only testimony presented by the State regarding appellant's guilt came from uncorroborated accomplices, and that the alleged accomplice testimony was contradictory. The State responds that its witnesses were not accomplices; and in the alternative that their testimony was corroborated by Sergeant Grant and Harris's testimony that appellant had threatened his life. The trial judge did not make a specific finding as to Brown's and Harris's status as accomplices.

The threshold issue for this court to consider is whether Brown and Harris are accomplices as a matter of law. For an individual to be an accomplice, he must engage in one of the activities articulated in Ark. Code Ann. § 5-2-403 (Repl. 1997). That statute provides:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

(b) When causing a particular result is an element of an offense, a person is an accomplice in the commission of that offense if, acting with respect to that result with the kind of culpability sufficient for the commission of the offense, he:

(1) Solicits, advises, encourages, or coerces the other person to engage in the conduct causing the result; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or engaging in the conduct causing the result; or

(3) Having a legal duty to prevent the conduct causing the result, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403. The appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). Whether a witness is an accomplice is usually a mixed question of fact and law, and the finding as to whether a witness is an accomplice is binding unless the evidence shows conclusively that the witness was an accomplice. Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997). Relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity to the crime, the opportunity to commit the crime, and an association with a person involved in the crime in a manner suggestive of joint participation. Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990).

There is evidence connecting the State's witnesses to the crack cocaine: Brown testified that she was aware appellant had been selling crack, and that she had traded stolen clothes for a rock ofcocaine earlier in the day; Brown and Harris both received immunity for their testimony; and Brown and Harris were both staying at the Motel 6. However, one's presence at the crime scene or failure to inform law enforcement officers of a crime does not make one an accomplice as a matter of law, Raynor v. State, 343 Ark. 575, 36 S.W.3d 315 (2001), and a buyer of illicit drugs is not an accomplice of the seller. Ellis v. State, 306 Ark. 461, 464, 816 S.W.2d 164, 166 (1991). Nor does a grant of immunity alone cause a witness to be an accomplice as a matter of law. Pilcher, supra. In our review, we are not persuaded that appellant has carried her requisite burden of proof to establish that Brown and Harris were in fact her accomplices. Therefore, Harris's and Brown's testimony did not require corroboration pursuant to Ark. Code Ann. section 16-89-111(e)(1) (1987). However, the evidence presented by the State (independent of the accomplice testimony) was substantial enough to connect appellant with the commission of the crime. Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470 (1994).

Here, in addition to the testimony of Harris and Brown, the trial court relied on the testimony of Sergeant Grant as evidence to support appellant's guilt and to corroborate Brown's testimony that appellant had been selling drugs on the day in question. Specifically, Grant's testimony that he recovered (from the front floor-board of the vehicle appellant was traveling in) a bag containing crack cocaine, divided into $20.00 increments, along with his testimony that appellant had eleven hundred dollars in her bra at the time of arrest corroborates both witnesses' testimony. Also, Harris's testimony that appellant threatened his life is adequate to corroborate Brown's testimony. See Sargeant v. State, 272 Ark. 336, 614 S.W.2d 503 (1981).

Finally, appellant contends that the evidence presented by the State does not support the revocation of her probation. Unfortunately, appellant failed to move for dismissal regarding her probation revocation. Therefore, her sufficiency of the evidence challenge, as to the revocation ofher probation, is barred pursuant to Ark. R. Crim. P. 33.1(b)(2001). Rule 33.1(b) requires a defendant to make a motion for dismissal in non-jury trials at the close of all of the evidence in order to preserve any questions pertaining to the sufficiency of the evidence for appellate review, and this rule applies to revocation hearings. Ark. R. Crim. P. 33.1(b)(2001); Miner v. State, 342 Ark. 283, 28 S.W.3d 280 (2000).

If the issue had been preserved for appellate review, we would affirm the revocation. The burden on the State is to prove a violation of a condition of probation only by a preponderance of the evidence; the determination of a preponderance of the evidence turns on questions of credibility and weight to be given testimony, and we, therefore, defer to the trial court's superior position. Wade v. State, 64 Ark. App. 108, 983 S.W.2d 147 (1998). Here, appellant stipulated to allowing the facts at trial stand as evidence of a violation of her probation. Having found that the evidence presented by the State is sufficient to sustain appellant's conviction, it logically follows that the same evidence would be sufficient to affirm the revocation of appellant's probation.

Affirmed in all respects.

Robbins and Bird, JJ., agree.

1 The State Crime Laboratory identified the substance as cocaine, in an aggregate amount of 4.353 grams.