Clifton Wofford v. State of Arkansas

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ar01-399

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CACR 01-399

December 19, 2001

CLIFTON WOFFORD APPEAL FROM PERRY COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE JOHN B. PLEGGE,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

A jury found Clifton F. Wofford guilty as an accomplice to his younger brother in the shooting death of their friend and tenant, Kevin Dupuy. Appellant was found guilty of second-degree murder and criminal use of a prohibited weapon. He was sentenced to twenty years in prison and fined $2,500 on the murder conviction and one year on the weapon conviction, with the sentences to run consecutively. He argues on appeal to this court that the trialcourt erred in denying his motions for directed verdicts on both convictions. We disagree and affirm.

Tammy Higgins, the victim's girlfriend, testified that appellant and his brother, Jeremy, had been by the cabin she and the victim had rented from the brothers several times on the day of the shooting. She testified that they were there when Kevin Dupuy got off work at 8:30 p.m. and that they ate together and had several beers. She said that the brothers hugged Dupuy, told him they loved him, and then left. Higgins stated that the brothers returned within five minutes and that Jeremy had a shotgun and appellant had a club. She ran back inside the cabin where Dupuy was on the telephone and warned him that the brothers were back and were armed. Higgins testified that Jeremy shot Dupuy in the chest as appellant stood by Jeremy's side. She said the brothers then ran out of the cabin together.

Byron Doughty testified that he was speaking on the telephone to the victim when he was shot. He said he heard Higgins yell, "They're here." He then heard a pop and heard Dupuy say, "I'm shot."

Bob Gollaher testified that the brothers had come by his house that evening to show him their red car. He said that they drank beer with him at his place and told him that they were going to ask Dupuy to move out of their cabin. Gollaher stated that he kept asawed-off shotgun behind his front door and that Jeremy started out the back door with it but that he took it away from him. The brothers left but came back later that evening. By that time Gollaher was drunk and asleep on the couch. The brothers woke him up, and they talked and drank some more. Gollaher recalled one of the brothers saying that Dupuy was "going to move or else." He stated that the brothers broke his mop and broom to make a club and that he figured they were going to beat Dupuy. Gollaher noticed that the shotgun was gone the next morning.

Officer Matt Williams testified that appellant's red car approached the highway, where police officers were waiting, at a high rate of speed from a dirt road that was riddled with pot holes. Appellant was driving, and Jeremy was sitting in the passenger's seat. Williams stated that he removed a sawed-off shotgun from the floorboard on the passenger's side of the vehicle. Appellant testified that he, Jeremy, and Jody Boerner drove to Gollaher's house to talk for the second time that evening and that they gave Gollaher a pint of whiskey even though they all knew he was an alcoholic. Appellant testified that there was no conversa tion about any weapon and that he did not know that Jeremy had taken the shotgun. He stated that when they got back to the cabin, he had urinated on a tree and was walking toward the cabin when he heard the shotgun blast. Appellant said that he ran down the halland saw Dupuy lying on the floor and that he held him in his arms. He stated that he was driving to get help for Dupuy because he did not know that a telephone had been recently installed at the cabin.

Jody Boerner testified that he also did not see Jeremy with a shotgun after leaving Gollaher's house. He testified that the brothers were outside the cabin yelling for Dupuy to come outside and that was when he saw that Jeremy had a shotgun. Boerner conceded that he had told Sheriff Ray Byrd that appellant had some kind of stick. He stated that he was on the front porch and that both brothers were inside the cabin when he heard the shotgun blast. He remembered that Jeremy ran past him on his way out of the cabin and that he saw appellant at the end of the hall holding Dupuy.

On rebuttal Sheriff Byrd testified that Boerner had made a statement in which he had indicated that the brothers went into the cabin together and that when they returned they yelled to him, "Come on, let's go" and when he refused to go with them, they said, "Come on, let's get the hell out of here before somebody shows up." Byrd stated that Boerner did not tell him that he saw appellant holding Dupuy. In fact, Byrd testified that he was told by Boerner that after he heard the shotgun blast, he stepped into the hall and saw Jeremy lowering the shotgun and saw appellant standing besidehim. In his statement, Boerner said that one of them told the other, "We can go now."

Larry Wofford, the brothers' uncle, testified that Jeremy and appellant came to his house that day and ate lunch during which they talked about getting Dupuy out of the cabin.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). We view the evidence in the light most favorable to the State and will affirm the conviction if there is substantial evidence to support it. Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000). A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001).

A person is criminally liable for the conduct of another person when he is an accomplice of another person in the commission of an offense. Ark. Code Ann. § 5-2-402(2) (Repl. 1997). 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 aids, agrees to aid, or attempts to aid the other person in planning or committing it. Ark. Code Ann. § 5-2-403(a)(2) (Repl. 1997).

Factors that are relevant in determining the connection of an accomplice to a crime are the presence of the accused in the proximity of the crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participa tion. Lanes v. State, 53 Ark. App. 266, 922 S.W.2d 349 (1996). Appellant first argues that he did not possess the requisite intent under accomplice liability to have committed criminal use of a prohibited weapon. A person commits the offense of criminal use of prohibited weapons if he uses, possesses, or otherwise deals with a sawed-off shotgun or rifle. Ark. Code Ann. § 5-73-104 (Repl. 1997). He contends that he could not have acted "purpose fully" because he did not know that his brother had the weapon. He points out that even Boerner testified that he did not know Jeremy had the shotgun. Appellant maintains that the State's witness, Gollaher, testified that there was no mention of the gun or its proposed use while they were at his house. He argues that, at most, he was simply present when Jeremy committed the offense and that an equally reasonable conclusion is that Jeremy acted on his own and without the knowledge of appellant.

It is the sole province of the jury to determine not only the credibility of the witnesses, but the weight and value of their testimony. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001). The jury did not have to believe appellant's testimony nor that ofBoerner, appellant's friend whose trial testimony differed from his earlier statement to the police. Gollaher testified that Jeremy attempted to take the shotgun during the brothers' first visit to the cabin and recalled that appellant was sitting on the couch when this happened. This would suggest that appellant knew Jeremy was trying to abscond with the weapon. The jury could have further inferred that appellant took whiskey to Gollaher in order to subdue him for Jeremy to successfully take the shotgun during the second visit. Also, after the police stopped the car driven by appellant, the shotgun taken from Gollaher was found in plain view on the passenger's side floorboard. There is substantial evidence that appellant was an accomplice to the possession of a prohibited weapon.

A person commits second-degree murder if he "knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life." Ark. Code Ann. § 5-10-103(a)(1) (Repl. 1997). When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both, and a participant cannot disclaim responsibility because he did not personally take part in every act that made up the crime as a whole. Releford v. State, 59 Ark. App. 136, 954 S.W.2d 295 (1997).

Appellant maintains that there was no evidence that he acted "knowingly" with regard to the second-degree murder conviction. He contends that it is reasonable to think that he thought he and his brother were only going to the cabin to intimidate Dupuy into moving out of their cabin and that his fleeing the scene of the crime could be attributed to fear or misplaced loyalty to his brother.

Appellant and his brother discussed several times during the day of the murder their desire to evict Dupuy from their cabin. Higgins testified that appellant was armed with a club when he entered the cabin with his brother who had the shotgun, and Boerner testified that he saw appellant standing beside his brother after Jeremy had shot Dupuy. Appellant fled the cabin with his brother and drove the getaway car. Flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt and may be considered as corroboration of evidence tending to establish guilt. Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001). Appellant's conviction for second-degree murder is supported by substantial evidence.

Affirmed.

Bird and Roaf, JJ., agree.

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