Marcus K. Vincent v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION II

MARCUS K. VINCENT

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-95

OCTOBER 8, 2003

APPEAL FROM THE DREW

COUNTY CIRCUIT COURT

[NO. CR 2002-9-3B]

HONORABLE ROBERT BYNUM

GIBSON, JR., JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Marcus Vincent appeals his convictions for aggravated robbery and theft of property in connection with an armed robbery of a Sonic Drive-In restaurant in Monticello, Arkansas, on the night of November 23, 2001. Appellant's sole challenge to his convictions is that there is insufficient corroboration of an accomplice's testimony. We disagree and affirm.

Arkansas Code Annotated section 16-89-111(e)(1) (1987) provides that a person cannot be convicted of a felony based upon the testimony of an accomplice, unless that testimony is "corroborated by other evidence tending to connect the defendant with the commission of the offense." Corroboration is not sufficient if it merely establishes that the offense was committed and the circumstances thereof. McGhee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999); Meeks v. State, 317 Ark. 411, 878 S.W.2d 403 (1994). Circumstantial evidence may be used to support accomplice testimony, but it, too, must be substantial. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Id. In this case, evidence other than the accomplice testimony tends to establish the crime and, to a substantial degree, connect appellant with the commission of the crime.

It is undisputed that appellant is a black male who was eighteen years old at the time of the robbery. At the jury trial, the State presented several witnesses to describe the robbery, which occurred at approximately 11:18 p.m. An employee who was not on duty but was at the restaurant that night, Belinda Ann Powell, testified that just prior to the robbery, she saw a car driven by Antonio Owens come into the parking lot. Antonio is the accomplice whose testimony had to be corroborated. Belinda said she knew Antonio, and in the car with him were four other black males who looked like teenagers. The only other person in the car, who she could positively identify, Keon Merritt, was in the front passenger seat.

A car-hop on duty that night, Craig Booker, testified that two black males dressed in black came in the door of the restaurant. Craig said that he was probably six to eight feet away from the robbers when they entered the Sonic and that he could see that they were black. Craig described their heights to be about 6'2" to 6'3" tall, though one of them could have been a couple of inches taller than the other. Craig said that one had a pistol, which was put to his back, and the other had what appeared to be a shotgun. The one with the shotgun went around to the register, stuck his gun in the manager's face, demanded all the money, and reached into the cash register and grabbed a wad of cash. Then, they both walked out the same door they entered and fled on foot.

Ladedra Qutrell Lambert, who worked as a cook that night, testified that she knew one of the black males, Sean Williams, but she did not know the other one. Ladedra described them as both wearing black and having nets over their faces, both between the ages of eighteen and twenty, and both of medium build. Another employee, Samantha Raylene Jordan, testified that she saw the two black males, clad all in black with stocking masks, come into the restaurant, the taller of the two holding a shotgun and going straight to the register. Samantha said the shorter of the two held a pistol to Craig's back. Samantha described them as medium build, like basketball players, and between the ages of nineteen and twenty-four. Samantha said she knew they were black because she could see the skin around their wrists.

Nicole Fisher testified that she knew both Sean Williams and appellant because they were friends of her ex-boyfriend Mario. Nicole said that on the night of the robbery, she saw both Sean and appellant when they arrived at Mario's trailer at about midnight. Nicole said that she and Mario were outside and that Sean and appellant came running up to the trailer. Neither one wore a shirt, though appellant was holding his shirt "balled up" in his hand. Nicole said their pants were black, and she thought appellant's shirt was black, which she could see under the street lights and porch light. Nicole testified that Antonio Owens and Keon Merritt were already at the trailer, though they had not been there long.

A police officer, John Dement, testified that his investigation of the crime revealed that the robbers ran to the rear of the Sonic when they fled, that Sean Williams had later shown police where he discarded his rifle behind the Sonic in a field, and that there were checks written to Sonic also discarded in the field.

Antonio Owens, also charged in the crime, testified for the State. Antonio said that he was sixteen years old, that he knew Sean Williams and appellant Marcus Vincent, and that he was driving the car that night which others had identified as a two-toned gray car. In the car with him were Keon Merritt, Sean Williams, and appellant. Antonio said that Sean had earlier talked about "hitting a lick," meaning stealing, from Sonic because there was a lot of money at Sonic. Later that evening, sometime before 11:00 p.m., appellant asked to be let out of the car. Sean was let out a few minutes later. Antonio then drove through the loop of the Sonic and was subsequently pulled over by the police; Keon was still with him. Antonio said that appellant wore navy blue pants and shirt that night.

Defense counsel moved for directed verdict on the basis that (1) there was insufficient corroborating evidence of Antonio Owens's testimony, and (2) there was insufficient evidence to convict based upon the circumstantial evidence presented. The motion was denied. Then the defense presented its case. Appellant's girlfriend, Christie Swift, testified that she was with appellant at the time of the robbery, placing him at Mario's trailer at about 10:30 p.m., but she left with him and later returned him to the trailer sometime around midnight. She said that they had a child together and she was sure appellant was with her that night at that time.

The State called Sherrie Ann Swift in rebuttal. Sherrie is Christie's sister. Sherrie said that she worked at Sonic, that she got off work that night at 10:00, and that she went directly home. She did not remember anyone coming over or driving up to the house that night after she arrived at home at about 10:15. Sherrie said when she came home, the cars that were there were hers, her sister's, and her mother's. Sherrie said she was awake until about 11:00, and that her sister was home when she arrived at home.

After defense motions for directed verdict were renewed and denied, the jury was instructed that Antonio Owens was an accomplice. The jury deliberated on the evidence and found appellant guilty. This appeal followed. Appellant has abandoned his circumstantial-evidence argument on appeal, arguing only that the State failed to corroborate the accomplice testimony.1

The test for determining the sufficiency of the corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Meeks v. State, supra. Appellant concedes that the other evidence clearly establishes the crime. Appellant contends that the other evidence fails to connect appellant to the crime, other than to suggest that he was associated with persons who engaged in criminal conduct, having been connected with them some time earlier in the evening and sometime later in the evening. The State counters that the evidence, other than that supplied by Antonio, demonstrated much more than presence around others who were involved in crime. The State asserts that its evidence showed that appellant was seen wearing clothing that night shortly after the crime that fit the description uniformly given by the victims of the crime, that he was seen on foot shortly after the crime the victims had described, and that he came running to a trailer shortly after the robbery with Sean, who was positively identified in the crime. Where circumstantial evidence is used to support accomplice testimony, all facts of evidence can be considered to constitute a chain sufficient to present a question for resolution by the jury as to the adequacy of the corroboration, and the court will not look to see whether every other reasonable hypothesis but that of guilt has been excluded. Jones v. State, 349 Ark. 331, 78 S.W.3d 104 (2002). We agree that this case turned on circumstantial evidence. However, the accomplice testimony was more than sufficiently corroborated. The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in a crime in a manner suggestive of joint participation, are relevant factors in determining the connection of an accomplice with the crime. See Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001); Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987). The trial court did not err.

Affirmed.

Gladwin and Bird, JJ., agree.

1 Appellant's brief states that of his "two separate theories" in his directed-verdict motion, one was "that the State's evidence was entirely circumstantial and left equally plausible alternative theories of the crime, [which] seems to be foreclosed by Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999)." Appellant's counsel then commences to argue only the corroboration theory.