Marlon Porch and Michael Westbrook v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ROBERT J. GLADWIN, JUDGE

DIVISION I

MARLON PORCH and MICHAEL WESTBROOK

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR02-496

February 26, 2003

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. 2001-1016]

HON. WILLARD PROCTOR, JR.,

JUDGE

AFFIRMED

At a bench trial in Pulaski County Circuit Court, Marlon Porch and Michael Westbrook were found guilty of aggravated robbery and aggravated assault. Each was sentenced to ten years' imprisonment. They argue on appeal that the trial court erred in denying their motions for a directed verdict because the State presented insufficient evidence to identify them as the perpetrators of the crimes. We disagree and affirm.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 346 Ark. 48, 55 S.W.3d 251 (2001). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other, without having to resort to suspicion or conjecture. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable

to the State and consider only the evidence that supports the verdict. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000).

On January 26, 2001, Ruby Hurst was at home with her two children when Westbrook came to her door. Hurst recognized Westbrook as he had been to her house before to play video games with her husband. She told Westbrook that her husband was not at home and started to close the door. Westbrook then forced his way into her home and held a gun to her head. Westbrook dragged Hurst by the hair into the kitchen. Although Hurst was lying face down on the floor with Westbrook beating her, she heard her three-year-old son and six-year-old daughter running down the hall crying. She saw a second man, later determined to be Porch, put a gun to her son's head. When Porch saw that Hurst was looking in his direction, he kicked her in the eye hard enough to leave a footprint on her face. Porch and Westbrook fled taking $15 from on top of the television set.

Following the incident, Hurst and her daughter, Raevein Tatum, were shown photographic lineups. Hurst immediately identified Westbrook but was unable to identify Porch. Tatum immediately identified Porch, but she did not recognize Westbrook from the photo spread.

At the time of the trial, Tatum was seven years old. At the pretrial competency hearing, Tatum testified that she understood that she had to tell the truth and that she would go to jail if she told a lie in court. Over appellants' objection, the trial court found that Tatum was competent to testify.

Tatum then testified that she had identified Porch from the photographic lineup as the man who had put a gun to her mother's head and had "stomped" her mother's head. With regard to her identification of Porch, she testified as follows:

Q: "And are you sure that that's the person?"

A: "That's the person."

Q: "Okay. And how are you so sure?"

A: "`Cause I know who I saw. I got good eyes."

Tatum stated that she also recognized Westbrook as he sat in court. On cross-examination by defense counsel, the following colloquy occurred:

Q: "Right after they robbed -- these people you say robbed your house, you were only able to identify one of them? Is that right?"

A: "Yes."

Q: "Okay. But now you're saying that it was both of them?"

A: "Yes. Now I remember what they looked like."

Q: "You do?"

A: "Yes."

At trial, Hurst referred to Westbrook by name and testified that she knew who she had opened her door to and that she would not have opened her door to a stranger. Hurst admitted that she saw Porch only from the knee down and heard a second voice telling her children to go back to their room.

Detectives Charles Ray and Linda Keel, who had shown Hurst and Tatum the photo spreads, testified about the victims' identifications of Porch and Westbrook. Ray stated that Hurst was "almost immediately positive" in her identification of Westbrook and that Tatum was "adamant" in her identification of Porch. Ray recalled that it took Tatum less than three seconds to point to Porch's picture and that no one said anything to her while she waslooking at the photo spreads. Likewise, Keel testified that Tatum was "very positive" in her identification of Porch.

Both Porch and Westbrook testified as to their whereabouts on the day in question. Westbrook testified that he was at his girlfriend's house preparing for his birthday party while Porch testified that he was with a friend.

On appeal, Porch argues that the only evidence linking him to the crimes is the dubious testimony of a seven-year-old child. He argues that the child had been coached by her parents to point a finger at him and that she had contradicted her previous statement when she suddenly remembered not one but two people.

The trial court must begin with the presumption that every person is competent to be a witness. Jackson v. State, 290 Ark. 375, 720 S.W.2d 282 (1986); Ark. R. Evid. 601. The same presumption and standards for determining the competency of a witness apply in deciding the capacity of a child witness to testify. Holloway v. State, 312 Ark. 306, 849 S.W.2d 473 (1993). The question of competency is a matter lying in the sound discretion of the trial court and, in the absence of clear abuse of discretion or manifest error, that exercise will not be disturbed on appeal. Chappell v. State, 18 Ark. App. 26, 710 S.W.2d 214 (1986). We cannot say that the trial court abused its discretion in finding that Tatum was competent to testify under these circumstances.

Although we are not convinced that Tatum's testimony was contradictory, any perceived inconsistencies would have affected Tatum's credibility and not her competency. See Conley v. State, 20 Ark. App. 56, 723 S.W.2d 841 (1987). It is the fact-finder's duty todetermine the credibility of the witnesses and to resolve any inconsistencies. Miller v. State, 318 Ark. 673, 887 S.W.2d 280 (1994). Tatum testified that no one had told her who to pick out from the photographic lineup. She said, "[Dad] was talking about keep on looking, that might not be the right one. But he didn't tell me who he was. I just picked [Porch's picture] out." Although Tatum asserted that she suddenly recognized Westbrook during the trial, she never wavered in her identification of Porch. Tatum's identification was sufficiently reliable to support Porch's conviction.

The argument advanced by Westbrook is that the trial court should have granted his directed-verdict motion because Hurst never identified him for the record during her testimony. He further contends that Tatum's testimony in which she identified him was wholly unreliable.

It is beyond dispute that "an element to be proved in every case is that the person who stands before the court in the position of defendant is the one whom the indictment or information accuses and to whom the evidence is supposed to relate." United States v. Fenster, 449 F. Supp. 435 (E.D. Michigan 1978); Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Identification can be inferred from all the facts and circumstances that are in evidence. Womack v. State, 301 Ark. 193, 783 S.W.2d 33 (1990). In Becker v. State, 298 Ark. 438, 768 S.W.2d 527 (1989), the defendant argued on appeal that the trial court should have granted his directed-verdict motion because he was not identified in court as the robber. The supreme court reasoned that the witnesses were eyewitnesses to the robbery, and the fact that none of them pointed out that the wrong man had been brought to trial was eloquent andsufficient proof of identity. The same logic applies here. In any event, although it was not pointed out by either party, Hurst was recalled to the stand as a rebuttal witness to identify Westbrook for the record. Appellants objected that Hurst's identification was not true rebuttal, and the court sustained the objection but noted that Hurst had clearly identified Westbrook throughout the trial so that the rebuttal was not necessary. Furthermore, during this exchange, the prosecutor stated, "For the record, throughout her testimony [Hurst] said Michael Westbrook and pointed over there to him throughout her testimony." Defense counsel concedes this point when he says, "Correct,...." As for Westbrook's contention that Tatum's testimony was unreliable, we do not agree for the reasons cited above. Hurst's identification of Westbrook, coupled with Tatum's identification of him at trial, constituted substantial evidence to support his conviction.

Affirmed.

Pittman and Hart, jj., agree.