Tony Orlando Pace v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

CHIEF JUDGE JOHN F. STROUD, JR.

DIVISION II

TONY ORLANDO PACE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 02-648

April 2, 2003

APPEAL FROM THE OUACHITA

COUNTY CIRCUIT COURT

[CR-2001-259]

HONORABLE CAROL CRAFTON

ANTHONY, CIRCUIT JUDGE

AFFIRMED

Appellant, Tony Pace, was tried by a jury and found guilty of the offenses of aggravated robbery, attempted capital murder, and possession of a firearm by certain persons. He was sentenced to 720 months in the Arkansas Department of Correction. For his sole point of appeal, appellant contends that there was insufficient evidence to support the guilty verdicts against him. His one-page argument consists entirely of challenging the victim's testimony against him. We affirm the convictions.

This court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). We have repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id. We

affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. Moreover, 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), and we do not weigh the evidence presented at trial or weigh the credibility of witnesses, as these are matters to be resolved by the finder of fact. Id.

Paul Wright, deputy sheriff, testified that on June 17, 2001, he became aware of an attempted robbery involving Martin Scott, the victim. He said that he assisted in the investigation. As a result of that investigation, he said that one of the names of possible suspects that was made available to him was that of Tony Pace, appellant. He said that he participated in the search for appellant and eventually located him on the same day of the incident. He explained that he, Sergeant Tuberville, and several other officers were told that appellant was in the area of Garland Street and that they began a foot search, which included a canine grid search. According to Wright, one of the officers, Deputy Lester, was walking ten yards in front of Wright, looked between some houses, and Wright could tell that he "had something." Wright said that he heard Lester say, "Get your hands up," and that when Wright turned his flashlight on, he saw appellant standing beside the garage of a vacant house. Wright testified that when appellant was being handcuffed, he said, "I have a gun in my waistband," which was recovered by Wright. Wright identified appellant as the man he

arrested that night. The gun that they recovered from appellant was identified as State's Exhibit 1. Wright said that it was loaded with five .38 caliber, full-metal jacket rounds.

Officer Nick Tuberville testified that he was on duty as a deputy sheriff on June 17, 2001, and that he had occasion to respond to an alleged aggravated robbery. He said that he was notified by the dispatcher while he was in his patrol car; and that he was told to go to Marshall Street, which is approximately two miles down Bradley Ferry Road from Highway 79 North. He said that when he arrived at that location, Martin Scott told him that he "had been shot at" and that someone had stolen his money. Tuberville stated that he began looking for evidence. He said that he did not locate Scott's car at that time; that he found no shell casings in the immediate area of the road; and that he investigated down to the end of a road where a trailer was located because Scott told him that bullets had been fired to the west of where he was running and that he thought the trailer had been struck. Tuberville testified that he found a bullet hole in the trailer; that the exit hole of the bullet was in a bedroom; and that the bullet had become lodged in a mattress of the bed. He also testified that he participated in finding the car that belonged to Martin Scott; that it was found in Fort Lookout that same night; and that in his estimation, Fort Lookout was four or five miles from the scene that he had investigated earlier. He explained that State's Exhibit 6 was a photograph of the driver's side door of the car and that a bullet hole showed a bullet entered the door from inside and exited through the side of the door.

Lieutenant Boyd Woody testified that he was acting as a criminal investigation officer on June 17, 2001, and that he investigated an alleged aggravated robbery at the scene onMarshall Street. He stated that the victim, Martin Scott, gave him an account of what had happened on Marshall Street. He explained that he was the officer who actually found and recovered the bullet from the box springs in the bedroom of the trailer. He further explained that State's Exhibit 1 was a .38 caliber revolver that was recovered from appellant and that State's Exhibit 9 was a crime-lab analysis of the revolver and the spent bullet from the trailer. He stated that the analysis showed that the damaged bullet was fired from the same pistol that was recovered from appellant. He testified that he also examined the hole in the driver's side car door and that from his experience and based upon the information he received from Mr. Scott and his own personal knowledge, it was his opinion that the hole in the door was caused by a bullet. He said that the spent bullet was never found.

Martin Scott testified that on June 17, 2001, he had an occasion to go to McDonald's in Camden around 10:30 or 11:00 at night; that he drove there in his own car; and that on the way, he saw appellant and Jason Hopson and that they asked for a ride. Scott stated that he had seen Jason around, but that he had never met appellant before that night. He said that he gave them a ride. He said that Hopson was sitting to the right of him in the front passenger seat of the car and that appellant was sitting directly behind him.

Scott stated that after he stopped by McDonald's and took food to his girlfriend, that appellant and Hopson asked him to take them to Bradley Ferry Road. He said that he was not familiar with that area and that they directed him across the tracks to a Texaco station, where he stopped to get $5 worth of gas. He said that they remained in the car while he got the gas and paid for it. He said that he had approximately $40 to $45 and his checkbook. He said that when he got back in the car that they crossed the highway and went around a curve by a little club. He said that they directed him to turn left on Marshall Street and stop. He said that was where the incident happened.

Scott explained that Hopson got out of the car, and that appellant was still sitting behind him in the car. He said that appellant put a gun to his head and asked him if he believed in God. Scott responded that he did, and appellant told him to give him "what you got." Scott said that he gave appellant the $40 that was in his right pocket. He said that he then heard a cocking sound, moved his head, heard a shot, and that he then hopped out and started running. He said that as he was getting out, appellant almost shot him in the leg, but that the bullet went in the car door. He said that appellant kept shooting at him as he was running down the road, and that he remembered five shots being fired. He also stated that prior to June 17, his car door did not have a hole in it. He said that he was "running zig-zag" toward a trailer and that he saw two shots hit the trailer. He identified the person who did the shooting as appellant and said that appellant left in his, Scott's, car.

Scott further explained that when he was at McDonald's, he, Hopson, and appellant got out of the car. He said that he stood face to face, for five to ten minutes, with the person that had been in his back seat, and that there was no question in his mind that it was appellant.

Appellant testified that he had never seen Martin Scott before the day of trial; that he never rode in his vehicle, put a gun to his head, got money from him, or shot at him. He said he got the gun that was in his waistband from a man named Prentice who was at his cousin Rodney's house.

On rebuttal for the State, Kenneth Stephens testified that he was appellant's uncle; that he lives at 903 Garland in Camden; that he had heard appellant's testimony at trial; that he had previously seen the gun marked as State's Exhibit 1; and that the trigger guard on the gun "had been sawed in two." He explained that a couple of weeks prior to June 17, 2001, appellant had asked him for a hack saw. He said that he went to the dining room of his house and watched appellant through a window. He stated that appellant had the hack saw and was sawing on the gun in the back yard. He testified that he had told both appellant and Jason Hopson not to come back to his address when they got in trouble. He said that he heard about the incident because appellant was living with him in his house. Finally, he testified that prior to the trial he had not told anybody connected with the prosecutor's office or law enforcement about any of the things about which he was testifying; rather, that he told a young lady at the trial that appellant's testimony was not quite accurate. Appellant then returned to the stand and denied Stephens's testimony.

We hold that there was substantial evidence to support the findings of guilt. Martin Scott, the victim, identified appellant as the perpetrator at trial. He testified that he was positive about the identification. Mr. Scott's credibility was a matter to be weighed and resolved by the jury, and they obviously found his testimony to be credible. His testimony alone supported the jury's finding of guilt. In addition, Officer Boyd Woody testified about the results of the laboratory analysis from the crime lab, which showed that the bullet recovered from the trailer was fired from the .38 caliber pistol recovered from appellant on the night of the incident. Finally, Kenneth Stephens testified that he witnessed appellantsawing the trigger guard of the .38 caliber pistol approximately two weeks prior to the incident.

Affirmed.

Griffen and Roaf, JJ., agree.