Wanda Williams and Janet Urango v. State of Arkansas

NOT DESIGNATED FOR PUBLICATON

ARKANSAS COURT OF APPEALS

ANDREE LAYTON ROAF, Judge

DIVISION I

WANDA WILLIAMS and JANET URANGO

APPELLANTS

v.

STATE OF ARKANSAS

APPELLEE

CACR01-61

NOVEMBER 14, 2001

APPEAL FROM FRANKLIN COUNTY CIRCUIT COURT, NORTHERN DISTRICT

CR99-65

HON. JOHN S. PATTERSON, JUDGE

AFFIRMED

ANDREE LAYTON ROAF, Judge

Wanda Williams and her co-defendant, Janet Urango, were charged with aggravated robbery and theft of property. Williams and Urango objected to the introduction of a photograph of the two of them, obtained by the victim, and argued that the photograph should be excluded from evidence because it was of unknown origin and time frame, was not relevant to the State's case, and was prejudicial. Williams and Urango both moved for directed verdicts at the end of the State's case-in-chief based on insufficiency of the evidence, specifically arguing that the State had failed to produce enough uncontroverted evidence to find Williams and Urango guilty beyond a reasonable doubt. Williams and Urango renewed the objections at the end of all the evidence, but the motions weredenied. Williams and Urango were convicted of aggravated robbery by a Franklin County jury, and each was sentenced to a term of ten years in the Arkansas Department of Correction. On appeal, Williams contends that the trial court erred when it refused to grant her motion for a directed verdict based on the insufficiency of the State's evidence, namely on the premise of the lack of evidence to support the identification. Urango contends that 1) the trial court committed reversible error by failing to suppress a photograph of herself and Williams because the photograph was more prejudicial than probative, and 2) the trial court committed reversible error by failing to grant her motions for directed verdict. We disagree and affirm the decision of the trial court.

Wanda Williams and Janet Urango were convicted of aggravated robbery based upon the identification made by the victim, Glen Williams, Wanda Williams' uncle. There were two perpetrators during the attack, one with a mask and one unmasked. The person wearing the mask, Williams, was not identified by the victim as his niece until four days after the attack. During the days following the attack, the victim gave inconsistent statements, claiming that he was certain at the time of the attack that Williams was the culprit with the mask, and on other occasions, claiming that he wanted to make certain of the attacker's identity before giving the police the name of his niece. The victim eventually came forward on his own with a photograph of Williams and Urango that he had obtained from a relative, and identified the two women as the attackers.

At trial, Williams and Urango challenged the relevance of the photograph and claimed that the photograph was more prejudicial than probative. Williams and Urango each moved for a directed verdict, contending that there was insufficient evidence to identify them as the attackers. The trial court denied the motions for directed verdict both at the close of the State's case-in-chief, and againwhen the motions were renewed at the close of the evidence.

On appeal, Williams and Urango contend that the trial court erred when it refused to grant their motions for directed verdict based on the insufficiency of the State's evidence, namely on the premise of the lack of evidence to support the victim's identification of them as the suspects, and further contend that the question of identification should not have been submitted to the jury. The State counters that the question of a witness's credibility is solely within the province of the jury, and as such, the appellate court is bound by the jury's judgment with regard to the reliability of the victim's identification of Williams and Urango.

On appellate review, this court treats a motion for directed verdict as a challenge to the sufficiency of the evidence. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). The test for a motion of directed verdict is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere speculation or conjecture. Id. On appeal, the appellate court reviews the evidence in the light most favorable to the appellee and considers only the evidence that supports the verdict. Id. A denial of a motion for directed verdict will be affirmed if the jury's verdict is supported by substantial evidence. Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001).

Williams and Urango claim that there is no evidence to support the contention that they were the attackers. Williams argues that while the State may prove that Urango, who was not masked, was an attacker by virtue of the victim's eyewitness account, there is no direct or circumstantial proof of her own participation. Urango argues that the victim's identification was suspect, as illustrated byhis testimony that Urango was wearing the same clothes at the time of the attack that she was wearing at trial, at which time the parties agreed to a stipulation that defense counsel had purchased the new dress the day before trial.

It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence, and then it is for the jury to decide what weight the identification testimony should be given. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992); Kimble v. State, 331 Ark. 155, 959 S.W.2d 43 (1998). In determining the reliability of an identification, the following factors may be considered: (1) the opportunity of the witness to view the suspect at the time of crime; (2) the witness's degree of attention; (3) the accuracy of the prior description; (4) the level of certainty; and (5) the time lapse between the crime and confrontation. Bishop, supra; see also, Wooten v. State, 325 Ark. 510, 931 S.W.2d 408 (1996). The appellate court will not reverse a trial court's ruling on the admissibility of an identification unless it is clearly erroneous and will not inject itself into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Bishop, supra.

In the present case, the victim testified that Urango and a masked person attacked him in his home. A few days before the attack, Urango had appeared at his home and asked to use the telephone, and on the day of the incident, returned, claiming to have lost a piece of jewelry during her previous visit. After the victim allowed Urango in to search for the jewelry, she attacked him by hitting him over the head several times with a flashlight. A masked intruder entered the home, approached the victim, and held a gun to his head. The victim disarmed the masked assailant; however, she pulled a knife, and he was overcome. The masked intruder then tied the victim's handstogether with duct tape, and while so doing, was only eighteen to twenty inches away with the mask moved aside enough for the victim to see her cheek, eye, and some hair. Although the victim initially stated that the attacker may have been a male, he came forward within five days, armed with the photograph of Williams, his niece, and Urango, and identified the two as his attackers.

The victim unequivocally identified Williams and Urango as his attackers. The trial court had the discretion to permit admission of the identification evidence given by the victim, and it was solely in the province of the jury to determine the weight to be given such evidence. Therefore, viewing the evidence in the light most favorable to the State, this court affirms the denials of the motions for direct verdict.

Urango also claims that the trial court committed reversible error by failing to suppress the photograph identifying herself and Williams because the photograph was more prejudicial than probative. She contends that the photograph appears to depict a wedding and suggests evidence of other crimes, specifically that she and Williams are homosexual, thus making the photograph more prejudicial than probative. The State argues that the admission and relevancy of photographs is a matter within the sound discretion of the trial court, and that Urango failed to provide any evidence showing that the perceived prejudicial effect of the photograph outweighed its probative value.

The appellate court will not reverse a trial court's evidentiary ruling absent a showing of prejudice. Ramaker, supra. Admission of photographs rests solely within the sound discretion of the trial court, and its decision will not be reversed absent an abuse of that discretion. Id.; see also Lewis v. State, 73 Ark. App. 417, 44 S.W.3d 759 (2001). Even if a photograph is prejudicial, it may be admissible at the discretion of the trial court if it aids the jury in understanding the accompanyingtestimony. Ramaker, supra.

Urango argues in essence that she was convicted of aggravated robbery because she and Williams could conceivably be perceived as lesbians based on the photograph. See Sullinger v. State, 310 Ark. 690, 840 S.W.2d 797 (1992) (discussing potential for prejudice if line of questioning alludes to homosexuality and gives perception that defendant is a homosexual); Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985) (stating that question of whether to allow evidence establishing other crimes under certain circumstances is a matter within discretion of trial court). Urango has failed to establish any prejudice based on the admission of the photograph, and her argument must fail because the probative value of the photograph, which the victim utilized to make a positive identification of Williams and Urango as his attackers, substantially outweighs any hypothetical prejudice.

Affirmed.

Bird and Jennings, JJ., agree.