Curtis O. Mitchell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION ROBERT J. GLADWIN, JUDGE

DIVISION III

CURTIS O. MITCHELL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-523

April 2, 2003

APPEAL FROM THE POINSETT COUNTY CIRCUIT COURT

[NO. CR 2000-327]

HON. JOHN FOGELMAN,

JUDGE

AFFIRMED

A Poinsett County jury found Curtis O. Mitchell guilty of aggravated robbery and sentenced him to sixteen years' imprisonment. On appeal, he argues that there is insufficient evidence to support his conviction, that the trial court erred in denying his motion to suppress the identification of him by two witnesses, and that the trial court erred in refusing to instruct the jury on the lesser-included offense of robbery. We disagree and affirm.

On October 21, 2000, Jewell Hardin was robbed at gunpoint in the parking lot at the Dollar General Store in Marked Tree, Arkansas. Appellant fled with Hardin's purse, which contained $3,000. He was apprehended by police less than two hours after the incident. Besides the victim's eyewitness account, Melissa Eaton and Timothy Risper gave police both verbal and written statements implicating appellant by name, and Nancy Gibbs, assistant manager at Dollar General, told police that a man had been inside the store actingsuspiciously five minutes before the robbery occurred. Hardin identified appellant at the police station, and Gibbs identified him after he was returned to the Dollar General store at his request. A hearing was held on November 6, 2001, regarding appellant's motion to suppress the identification of him by Hardin and Gibbs. Officer Jerry Lindsey of the Marked Tree Police Department testified that when he arrived on the scene, he obtained statements by Eaton and Risper, who both knew appellant, that they saw appellant running with a purse. Officer Lindsey stated that Hardin arrived at the police station after appellant had been picked up by police and that appellant was in the booking area. He testified that he asked Hardin to look through the glass door connecting the lobby area to the booking area to see if she recognized her assailant. According to Officer Lindsey, Hardin said, "That's him. That's him." He admitted that appellant was the only person in the booking area at the time. He also acknowledged that appellant's mother was in the lobby area as well when Hardin identified her son and that, when appellant's mother asked Hardin if she was sure, Hardin then said, "I don't know." In addition, Officer Lindsey stated that appellant kept telling Chief Jim Crum that he did not rob the victim, and at appellant's insistence, he was directed to take appellant back to the scene where Gibbs promptly identified him as being in the store just prior to the robbery.

Hardin testified that appellant came up from behind her, stuck something in her back, and told her he wanted her purse. Hardin testified that she told appellant he could not have her purse. She said that appellant told her that he would shoot her if she did not give him her purse. Hardin testified that she began screaming and turned around to look at appellant. Shesaid she got a good look at the person who robbed her and that there was no doubt in her mind when she identified him less than two hours later at the police station. Hardin testified that appellant's mother threatened her at the police station but that she was absolutely positive that appellant was the one who had robbed her. Hardin stated that, prior to going to the police station, she had been told that witnesses had identified appellant and that the police had gotten him for her to identify. Hardin testified that she had been unable to give the police a physical description of appellant at the scene other than to say that he was wearing a white tee shirt and blue jean shorts. She stated that when she saw him at the police station he was wearing a red shirt and blue jeans.

Gibbs testified that she did not see the robbery occur but that she remembered appellant being in the store just prior to the robbery. She stated that he had watched her clerk checking out customers, that he did not buy anything, and that he had left the store five minutes before Hardin was robbed. She stated that she had been unable to give police officers a physical description of appellant but that she was able to identify him when he was returned to the store less than two hours later.

In denying appellant's motion to suppress the identification of him by Hardin and Gibbs, the trial court noted that the fact that the witnesses viewed only one person might be troublesome if the identification had taken place days later instead of only an hour or so later. The trial court found that Gibbs' identification was clearly not suggestive but that Hardin's identification was more problematic because the trial court understood her to say that the police officers told her, "We've got him" before she had identified him at the policestation. The trial court found, however, that viewing the totality of the circumstances, Hardin's credibility was bolstered by the fact that she recognized that appellant was wearing different clothes than he had been wearing at the time of the robbery.

At trial on November 7, 2001, Hardin testified that appellant told her he would shoot her if she did not give him her purse and that she heard him "snap" the gun and turned to see "a little bitty gun" in his hand. She said he fled across the railroad tracks with her blue purse.

Willie Thomas, appellant's uncle with whom he was living, testified that on the day in question he had been taking a nap when appellant arrived at the trailer. Thomas testified that appellant was sweating and that he changed clothes. He said that appellant had been wearing a white tee shirt. Thomas testified that he did not see appellant with a purse nor a gun.

Risper testified that he was on his way to the Dollar General when he saw appellant at the railroad tracks and that appellant seemed to be in a hurry. When he pulled into the parking lot, he saw Hardin holding her chest and he was told that Hardin had been robbed. Risper stated that appellant had been wearing a white shirt and blue jeans and that he was carrying what looked like a black purse.

Gibbs testified that she had identified appellant as having been in the store just prior to the robbery. She stated that she had noticed appellant because he was watching her and the cashier. Gibbs testified that appellant had been in the store for ten to fifteen minutes andthat the robbery had occurred within five minutes after he left the store. Gibbs, however, admitted that she did not see the robbery.

Eaton testified that she was inside her car at the Dollar General when appellant, whom she had known for five or six years, came out of the store. Eaton stated that appellant looked at her for a few minutes and then began walking toward a telephone booth. Eaton said that she turned back around when she heard Hardin screaming and that she saw appellant running with the purse. She stated that she did not see a gun. Eaton further testified that appellant was wearing a white tee shirt and blue jeans. Eaton admitted that, when writing her statement, she had written "black boy" and then scratched out those words and wrote appellant's name. She testified that she did so because she was afraid that appellant might hurt her or her child.

Officer Lindsey testified that he did not get a description of appellant from witnesses at the scene because two witnesses, Eaton and Risper, told him it was appellant who had robbed Hardin.

Sufficiency of the Evidence

Appellant argues that the trial court erred in denying his directed-verdict motion. A directed-verdict motion is a challenge to the sufficiency of the evidence. Goins v. State, 318 Ark. 689, 890 S.W.2d 602 (1995). As such, it must be addressed by this court before any other points on appeal. Id. 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 enoughto compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State and only evidence supporting the verdict will be considered. Alexander v. State, 78 Ark. App. 56, 77 S.W.3d 544 (2002).

Specifically, appellant contends that there were "gross inconsistencies" in the witnesses' statements about what he was wearing and the color of Hardin's purse. He further argues that Hardin was the only witness to testify that he had a gun and that her testimony is not credible. Appellant also points out that Eaton had initially written "black boy" in her statement to police. It is for the jury to resolve inconsistencies in testimony, and we will not disturb a jury's credibility assessment. Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002). The testimony of one eyewitness alone is sufficient to sustain a conviction. Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). Substantial evidence supports appellant's conviction.

Motion to Suppress

Next, appellant argues that the trial court erred when it denied his motion to suppress the pretrial show-up identification of him. He argues that the identification was suggestive in that he was the only person shown to the witnesses. Appellant argues that Hardin's and Gibbs' identification of him was not reliable.

In reviewing a trial court's ruling on a motion to suppress, we make an independent determination based upon the totality of the circumstances, giving due weight to inferences drawn by the trial court. See Davis v. State, 351 Ark. 406, 94 S.W.3d 892 (2003).

A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. King v. State, 323 Ark. 558, 916 S.W.2d 725 (1996). We recognize that there is a real danger of undue suggestiveness in a show-up identification, and such method should not ordinarily be arranged. See Cooley v. State, 4 Ark. App. 238, 629 S.W.2d 311 (1982) (citing James & Elliott v. State, 270 Ark. 596, 605 S.W.2d 448 (1980)). But even when the process is suggestive, the circuit court may determine that under the totality of the circumstances the identification was sufficiently reliable for the matter to be decided by the jury. Monk v. State, 320 Ark. 189, 895 S.W.2d 904 (1995). In determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure. Fields v. State, 349 Ark. 122, 76 S.W.3d 868 (2002). It is appellant's burden to show that the pretrial identification was suspect. Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992).

Although appellant challenged the pretrial identification of him by Hardin and Gibbs, appellant did not dispute the in-court identification of him by either witness on the basis that the in-court identification was unreliable or was tainted by the pretrial show-up identification. Consequently, the issue is not preserved for appeal. Goins v. State, 318 Ark.689, 890 S.W.2d 602 (1995). In any event, appellant did not at any time challenge the identification of him by Eaton or Risper.

Lesser-Included Offense Instruction

Finally, appellant argues that the trial court erred in refusing to instruct the jury on the lesser-included offense of robbery. Appellant argues that there was conflicting evidence as to whether a gun was used in that Hardin was the only witness who testified that she saw a gun.

A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997). It becomes aggravated robbery if the person is armed with a deadly weapon or represents, by word or conduct, that he is so armed. See Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997).

It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (2001). Thus, we will affirm the trial court's decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Harshaw v. State, 344 Ark. 129, 39 S.W.3d 753 (2001). Generally, a robbery instruction is required when the charge is aggravated robbery. Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988). The exception to that general rule is when the evidence is so conclusive as to show that only aggravated robbery could have been committed. Id.

Here, not only did appellant represent that he was armed, as evidenced by Hardin's testimony that he stuck something in her back and warned her that he would shoot her if she did not give him her purse, Hardin eventually turned around and saw the gun in appellant's hand. The fact that neither Eaton nor Risper saw a gun is not necessarily "conflicting" because they did not see the robbery in its entirety, but rather saw only the aftermath. There was no rational basis for giving the instruction because it had never been disputed, denied, or controverted that a gun was used in the robbery. See Henson v. State, 296 Ark. 472, 757 S.W.2d 560 (1988). Here, appellant was guilty of aggravated robbery or nothing at all. See id.

Affirmed.

Neal and Baker, jj., agree.