Antwone Nichols v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR03-190

NOVEMBER 12, 2003

ANTWONE NICHOLS AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR-2001-2235]

v.

STATE OF ARKANSAS HONORABLE CHRIS PIAZZA, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant was charged and convicted of aggravated robbery and theft of property with a value of $2,500 or more. He was sentenced to an aggregate of fifteen years' imprisonment. On appeal, appellant argues that the court erred in denying his motion for dismissal regarding both charges. We affirm.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Lenoir v. State, 77Ark. App. 250, 72 S.W.3d 899 (2002). In reviewing the sufficiency of the evidence, the appellate court views the evidence in a light most favorable to the State and considers only the evidence that supports the verdict. Id. The appellate court does 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.

Arkansas Code Annotated section 5-12-103(a)(1) (Repl. 1997) states that "[a] person commits aggravated robbery when he is armed with a deadly weapon, or he represents by word or conduct that he is so armed." Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). It is well settled, and consistent with this statutory language, that no transfer of property needs to take place to complete the offense. Id. (citing Robinson v. State, 303 Ark. 351, 797 S.W.2d 425 (1990)). Rather, the focus of aggravated robbery is the threat of harm to the victim; and, consequently, the offense is complete when physical force is threatened. Id.

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," or "knowingly obtains the property of another person, by deception or by threat, with the purpose of depriving the owner thereof." Ark. Code Ann. § 5- 36-103(a)(1)(2) (Supp. 2003). Theft of property is a Class B felony if the value of the property is $2,500 or more. Ark. Code Ann. § 5-36-103(b)(1)(A) (Supp. 2003).

The facts that give rise to this appeal are as follows. Jerry McAway testified that on the morning of August 7, 2000, he was doing yard work in a vacant lot that he owned in North Little Rock. Appellant approached him while he was taking a break and asked McAway if he could mow the lawn. McAway refused the offer and appellant walked away. Appellant returned a few minutes later armed with a handgun which he pointed at McAway. Appellant demanded that McAway place his "purse and diamond ring" on the tailgate of McAway's truck and back away. McAway complied and placed his diamond ring and his "purse," which contained approximately $4,100 in cash, on the truck tailgate. Appellant approached to retrieve the items, positioning himself within several feet of appellant. Appellant retreated with the property and ran across the street where he fled in an awaiting vehicle.

Appellant contends that because of McAway's poor vision, McAway's identification of him was not evidence substantial enough to sustain the conviction. We disagree. One eyewitness's testimony is sufficient to sustain a conviction and is not clearly unbelievable simply because it is uncorroborated or because it has been impeached. Williams v. State, supra; Lenoir v. State, supra. The appellate court does 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. Lenoir v. State, supra.

Here, McAway positively identified appellant as the perpetrator. He testified that appellant's face was in plain view. McAway recalled on the day he was robbed that the robber had gold teeth with letters engraved in them and that the robber had gray-looking eyes. Further, McAway identified appellant in a photo line-up. Prior to trial, McAway viewed two photo spreads. Although appellant's picture was not included in the first spread, McAway stated that one of the individuals in the spread looked like the robber, but that the robber was not in the spread. In the second spread, McAway positively identified appellant as his robber. Therefore, as substantial evidence supports appellant's conviction, we affirm.

Affirmed.

Griffen and Crabtree, JJ., agree.