Joseph Enkoff and Shawna Lou Day v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN B. ROBBINS, JUDGE

DIVISION II

JOSEPH ENKOFF and SHAWNA LOU DAY

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-491

FEBRUARY 26, 2003

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT,

FORT SMITH DISTRICT,

[NO. CR-2001-139 A & B]

HONORABLE J. MICHAEL

FITZHUGH, JUDGE

AFFIRMED

Appellants Shawna Lou Day and Joseph Enkoff appeal their convictions for theft of property after a jury trial in Sebastian County Circuit Court, both arguing that the State failed to present sufficient evidence to support their respective convictions. Both Day and Enkoff were also convicted of aggravated robbery and fleeing, but they do not appeal those convictions. We affirm.

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence. E.g., Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001) (citing Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995)). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith, supra. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendantchallenges the

sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id.; Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). The credibility of witnesses is an issue for the jury and not the court. Phillips v. State, 344 Ark. 453, 40 S.W.3d 778 (2001). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id; see also Atkinson, supra.

According to Arkansas Code Annotated section 5-36-103(a)(1) (Supp. 2001), a person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person with the purpose of depriving the owner thereof. Subsection (b)(1)(A) of that statute provides that theft of property is a Class C felony if the value of the property is less than two thousand five hundred dollars ($2,500) but more than five hundred dollars ($500). Arkansas Code Annotated section 5-36-102(c)(2) states that amounts involved in theft committed pursuant to one scheme or course of conduct, whether from one or more persons, may be aggregated in determining the grade of the offense. See also Phillips v. State, 297 Ark. 368, 761 S.W.2d 933 (1988).

Relevant law is also found in Arkansas Code Annotated § 5-2-403(a) (Repl. 1993), which provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other personin the commission of the offense. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). Under the accomplice liability statute, a defendant may properly be found guilty not only for his own conduct, but also for that conduct of his accomplice. Id. 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. Id.; see also Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997).

We view the evidence presented to the jury in the light most favorable to the State. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999). These crimes took place on January 29, 2001, in Fort Smith, Arkansas. Day and Enkoff went to the Village Inn Restaurant late in the evening and sat at a table drinking coffee. They were both former employees, Day more recently than Enkoff. Prior to closing time they hid in the bathroom, were surprised by the manager and two other persons when they entered the bathroom after closing, and emerged with Enkoff brandishing a firearm. Enkoff held the victims at gunpoint, and Day took the money from the safe and cash drawer in the office. Though the two wore masks, Day was recognized because she was a recent former employee and she had been observed in her present clothing sitting in the restaurant prior to closing time. Day warned them not to reveal her identity or she would come back and kill them. The money was put in a Wal-Mart sack. Day and Enkoff fled the restaurant, dropping money in the foyer and parking lot, which police officers gathered and counted up to be $284. They entered a compact station wagon driven by another man, Bradley Robinson. The car sped away but was forcibly stopped by police after an hour-long chase. One patrol unit caused the get-away car to "spin out." All three suspects were apprehended from the wrecked car. Officers recovered $406 strewn about the interior of the car, $114 from Day, and $120 from Enkoff, totaling $924 recovered from the suspects, their car, and the scene of the crime.

Day later gave a statement to police, confessing that she took money from the Village Inn but that it was Enkoff's idea. Enkoff also confessed to taking money from the restaurant as well, but he said that it was Day's idea. They both admitted to being very high on methamphetamine at the time.

The manager testified that the robbery took place just after midnight. The manager had already counted $200 in receipts that night, and she was certain that Day and Enkoff took more than $500 from the restaurant. She said that her superior at the restaurant told her that $1100 was taken.

The driver, Robinson, testified in the State's case. Robinson admitted that he went along with the plan and regretted doing so. Robinson said that he was seventeen at the time of the crimes, that charges against him were pending, but that the State had not offered any kind of deal in exchange for his testimony. Robinson explained that Day and Enkoff told him during the car chase that if they were apprehended, they would blame the crime on being on drugs and mimicking a movie they had seen.

Day and Enkoff moved for directed verdicts, but those were denied. Day argued that (1) the money recovered from the car in which Day was apprehended and from Day personally was not proved to belong to the alleged victim, Village Inn, and (2) the State did not prove that she took enough money to reach the level of felony theft. Enkoff moved fordirected verdict, generally joining Day's motion but adding separately that the State did not prove that he personally took enough money to reach felony theft.

Day and Enkoff then testified in their own defense, both stating that they had used illegal drugs that day, that one of them concocted a scheme to rob the restaurant, that they took money therefrom, and that they regretted making such a big mistake. After renewals and denials of their motions for directed verdicts, the jury was instructed on the applicable law, retired to deliberate, and found each guilty.

We first address whether the evidence was sufficient to support felony, as opposed to misdemeanor, theft convictions. Appellants, by their own testimonies, were accomplices in the commission of this crime and were responsible for the entire criminal episode. See Passley v. State, supra. Aggregating the money found on each appellant and the money found inside the get-away car, see Phillips v. State, supra, the total exceeds the threshold $500 to qualify as felony theft.

As to their argument that it was not established that the money belonged to the restaurant, we also disagree. First, both appellants testified that they acted together to take money from the restaurant and that they regretted having made such a mistake. Their admissions are sufficient evidence to support that the money taken belonged to the restaurant. Moreover, the eyewitnesses to the crime testified that they were held at gunpoint by Enkoff while Day took the restaurant's money. The evidence further established that money was dropped upon exiting the restaurant, money was found on their persons, and money was strewn about the inside of the car in which they escaped the scene.

There was direct and circumstantial evidence that the money belonged to the restaurant. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999). The evidence presented undoubtedly was sufficient to go to the jury and excluded every other reasonable hypothesis.

We affirm.

Bird and Griffen, JJ., agree.