Timothy G. Millholland, Jr. and Danny L. Irwin, Jr. v. State of Arkansas

ar03-352

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

TIMOTHY G. MILLHOLLAND, JR.

DANNY L. IRWIN, JR.

APPELLANTS

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-352

March 24, 2004

APPEAL FROM THE DESHA

COUNTY CIRCUIT COURT

[CR2001-167-4A, CR2001-167-4B]

HONORABLE DON EDWARD

GLOVER, CIRCUIT JUDGE

AFFIRMED

John F. Stroud, Jr., Chief Judge

Appellants Timothy Millholland and Danny Irwin were found guilty by a Desha County Circuit Court jury of the offenses of kidnapping and robbery. In addition, Millholland was also found guilty of battery in the third degree. On appeal, Millholland contends that there is insufficient evidence to support his convictions. Irwin argues that the trial court erred in denying his motions for directed verdict with respect to his convictions because there was insufficient evidence that he was Millholland's accomplice in the kidnapping and robbery. We affirm.

At trial, Robert Witherspoon testified that on September 13, 2001, he and his neighbor were working on his red 1990 Chevrolet Silverado pickup at his house. He eventually took the truck to a stretch of highway going toward Arkansas City to test the repairs, and right outside of Arkansas City, he saw a vehicle with the hood up. He did not stop at the car, buthe did stop when a young white male, whom he identified as Millholland at trial, flagged him down. Witherspoon asked if his car had broken down; Millholland said yes and asked if Witherspoon would give him a ride to his friend's house to get some gas money and then take him back to McGehee.

Witherspoon said that he took Millholland to a trailer, where Millholland knocked on the door and talked with a white male with dark hair. He then took Millholland to what he said was his brother's trailer. When they arrived, Millholland told him to pull up further; although he thought it was strange to pull past the trailer, Witherspoon did it. He said that he watched Millholland go in the trailer, and a short time later he came back out walking fast and asking Witherspoon for a gas can. Witherspoon said that he got out of the truck and backed up because Millholland looked "a little wild or something."

Witherspoon said that when he reached into his truck to pop the tool box open, he was hit across the shoulder with something hard; he did not see what hit him, but he said that it knocked him "down the side of the vehicle." He caught himself at the tailgate of his truck, pulled himself up, and struck Millholland in the chest, going at him "with everything [he] had." Witherspoon said that when he was down fighting with Millholland, he heard someone come out of the bushes behind where the truck was parked and hit him hard enough to knock him forward. Witherspoon said that someone continued to hit him, and he started losing consciousness; however, he heard someone say, "Kill that MF, Millholland, kill that MF." Witherspoon said that the next thing he remembered was waking up somewhere in the woods, "half naked," with no shoes, a broken watch, and blood running out of his mouth and ears. He said that he was extremely disoriented, but he managed to walk to a house, and the residents took care of him, called for help, and called his wife. When the sheriff arrived, Witherspoon told him Millholland's name, and the sheriff said that he knew him.

Medical personnel testified as to Witherspoon's injuries. LaSandra Madden, a registered nurse at McGehee Hospital, testified that Witherspoon was in a lot of pain and distress, and that you could "hardly touch him anywhere." She said that the hospital transferred him to Dumas Hospital for X-rays and further tests. Dr. Steve Asemota testified that he treated Witherspoon at the Dumas hospital, and that when he arrived, he was beaten, bruised, and in pain. Asemota said that Witherspoon had bruises on his head, neck, and chest, and that his chest was tender. Although there was extensive bruising, the skin was not broken, and there were no broken bones. He said that CT scans of the head and abdomen were performed, and that the results of both tests were negative. He said that Witherspoon's lung fields were clear, although he had complained about coughing up blood. Asemota said that it was possible to be kicked in the ribs and the lung fields remain clear, and that you could be kicked in the stomach and not sustain injury but still be tender. However, Asemota said that Witherspoon could not have sustained his injuries from slipping and falling down.

Kenneth Whitmore, a criminal investigator for the Arkansas State Police, testified that he was assigned to assist Scott Woodward in the Witherspoon investigation. During the interview with Witherspoon, Millholland's name came up, and Whitmore later asked a deputy if he knew of Millholland; the deputy said he did know him, and that if they wanted to find him to go see Danny Irwin. Whitmore and Woodward went to Irwin's house in McGehee, talked to him, and asked if he would come to the police department to talk to them. Irwin agreed, went to the police station, and told the officers that Millholland had been over to his house the night before and had given him some dope. With Irwin's consent, the officers returned to Irwin's residence and conducted a search of Irwin's room. Whitmore said that as they were conducting the search, Irwin went toward his bed to retrieve something, telling Whitmore that he wanted to pick up his keys. Whitmore said that he stayed underneath the mattress too long for him, so he told Irwin to come back; when he did not, Whitmore grabbed him, subdued him on the bed, and handcuffed him. That is when Whitmore saw a key chain with "Spoon" on it lying on the floor. When he looked under the bed, Whitmore found Millholland hiding under the bed.

Whitmore testified that Millholland gave a statement to the police. In it, he told them where to find Witherspoon's truck. Whitmore said that the truck was found behind some trees and a hog pen about 150 feet off the main road, and that you had to know that the vehicle was there because you could not see it from the road. He stated that neither Witherspoon's billfold nor his shoes were found in the truck or in Irwin's room.

Scott Woodward, a criminal investigator for the Arkansas State Police, testified that when he first saw Witherspoon on September 14 he was unable to talk to him much because Witherspoon was "out of it." In a brief statement, Witherspoon gave Woodward Millholland's name and described him as a white male, five foot three, 140 pounds, and wearing a white t-shirt, dark tennis shoes, and blue jeans. Woodward said that he met with Deputy Ronnie Mankin; that Mankin said that he knew Millholland; and that the description that Witherspoon provided matched Millholland. Mankin told Woodward that he did not know where Millholland was living, but said that if they found Danny Irwin, he would be able to tell them because they ran together.

Woodward read a redacted version of Irwin's first statement into the record. In it, Irwin said that he was at the Bear Claw Bar in Arkansas City the night before, and a black man came into the bar between eleven p.m. and midnight trying to cash a check.1 Irwin went outside to get a drink, and he saw a red truck with a black guy and black girl inside. Irwin said that he went back into the bar, played pool with his cousin, and then his cousin took him home about 1:30 a.m.

Woodward said that after Irwin made this statement, he consented to a search of his room. While conducting the search, Millholland was found hiding under the bed. Woodward said that Irwin walked around between the side of the bed and the outside wall, and they heard something. When Irwin reached down, Whitmore pulled him away as a safety precaution, and they found the "Spoon" key ring in the area where Irwin was reaching. Woodward said that at that time they did not know that the key ring belonged to Witherspoon.

Woodward also read into the record Millholland's statement that he gave the police. In it, Millholland stated that he and Travis Burchfield had gone the day before to a bar in Arkansas City to shoot pool. He said that he wanted a crack rock, so he walked to Dante's, but he could not get anything because he did not have any money. He said that when he was leaving, he ran into Faye and a guy in a truck, and the guy wanted to know if Millholland could cash a check. Millholland got in the truck and said that they dropped Faye off and went to Gene Kennedy's to try and cash the check, but Kennedy would not cash the check. He said that they came back to McGehee and rode around drinking. He said that they got out of the truck and that it looked like the guy tripped and fell; he said that the guy would not wake up and that it "freaked" him out because they had been riding around smoking crack and drinking. Millholland said that he decided to go to the house, so he took the man's truck and went home, thinking that if the man was not dead, there would be a farmer along in the morning to help him. Millholland said that the man was breathing when he left, and that other than being unconscious, he was fine. Millholland said that he left the man's truck on a lot "down from Uncle Frankie's house" with the keys in the ignition and the truck still running. He said that he did not know what else to do and that he did not want to go to jail. Woodward also read Irwin's second statement into the record, which was given after he had been arrested and read his rights. In it, Irwin said that he was at home about two a.m., and that when he got into the truck, there was a "black dude" in it who looked passed out. He said that they started toward Halley, and that he never touched the black man. Irwin's statement does not indicate whose truck he was in, nor does it identify the black man in the truck.

The rest of Irwin's statement was tape recorded rather than written. In it, Irwin said that he was not "putting on tape that he was in no vehicle or that he was there because he was not." He said that the guy was alive and moving around and looked like he was "bad drunk." Irwin said that if he said he was there, "that's accessory." He said that he would like to tell everything that happened, but he did not really know all "that went down." He said, "My statement is that [I] don't want to go to prison for something I didn't do. If I put myself in that truck, I'm an accessory."

Henry Gulley, the city marshal for Arkansas City, testified that on the night of the incident, he pulled into the Bear Claw and went inside between ten-thirty and eleven. He said that someone told him to come outside, and when he did, he saw Rusty Lennon and Danny Irwin. He said that he did not see Witherspoon there that night. Gulley told Lennon and Irwin to leave, and they left in a red truck, possibly a Chevrolet, but he could not say for sure if it was Witherspoon's truck. Gulley said that he did not see any black people at the Bear Claw that night.

The State rested its case, and appellants both moved for directed verdicts. These motions were denied.

For his defense, Millholland called Faye Anderson, who testified that on the night of the incident, she had come into contact with Witherspoon and had been riding around with him and his cousin drinking and smoking crack. She said that they took his cousin home and continued to ride around smoking and drinking. She got out of the vehicle when Millholland stopped Witherspoon and asked him for a ride back to McGehee. She said that Millholland got in the truck at the Bear Claw, and that he did not force his way into the truck. She denied that anyone went into the Bear Claw, and she said that she did not see Irwin that night.

Millholland testified in his own defense. He said that he went to the Bear Claw in Arkansas City to shoot pool. He said that he left to get a crack rock, and that when he went back outside to go back to the bar, Faye Anderson and Witherspoon were there in Witherspoon's truck. He said that he asked Witherspoon to give him a ride back to the bar, which he did. He went back in the bar, and when he came out again, Faye and Witherspoon were sitting in the parking lot. Faye waved him over and asked if he could cash a check for Witherspoon. He and Witherspoon went to Gene Kennedy's, but Kennedy would not cash the check. They went back to Arkansas City, and Millholland said Witherspoon took him to get some money to buy dope. He said that they bought some dope and rode around smoking it, and then they went by his brother's house, where they got some more "weed." Millholland said that they continued to ride around drinking and smoking rocks and that Witherspoon passed out in the truck close to McGehee. He said that he picked up Irwin and they went "riding down the Halley highway." He said that Witherspoon woke up and asked to use the restroom; he pulled over and they all got out. He said that he saw Witherspoon do a "stumbling drunk," like he was intoxicated. He said Irwin told him that Witherspoon might have hurt himself, and that is when he saw Witherspoon lying on the ground with his head propped up. He said that he was paranoid because he had been smoking crack, smoking weed, and drinking, and that he decided that they needed to get away, so they left. He said that about an hour and a half later, they decided that it was not a good idea to leave him out there so they go back, but Witherspoon was not there. He said that they then went back home and went to bed. Millholland denied ever hitting Witherspoon or putting Witherspoon's truck anywhere; he said that Irwin was driving and that he was asleep when the truck was parked. However, he stated that he remembered waking up and walking out of the lot.

After Millholland's testimony, the defense rested. The motions for directed verdict were renewed, and they were again denied.

On appeal, Millholland argues that there was insufficient evidence to support his convictions for kidnapping, robbery, and battery in the third degree. When the sufficiency of the evidence is challenged on appeal, the test is whether there is substantial evidence to support the verdict; substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Britt v. State, __ Ark. App. ___, 118 S.W.3d 140 (2003). In determining whether the evidence is substantial, the evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Id. We hold that there is substantial evidence to support all three convictions.

A person commits the offense of kidnapping if, "without consent, he restrains another person so as to interfere substantially with his liberty for the purpose of: . . . (3) Facilitating the commission of any felony or flight thereafter; or . . . (4) inflicting physical injury upon him . . . ." Ark. Code Ann. § 5-11-102(a)(3) & (4) (Repl. 1997). On appeal, Millholland contends that there was no evidence that Witherspoon was restrained in any way.

"Restraint without consent" includes "restraint by physical force, threat, or deception." Ark. Code Ann. § 5-11-101(2) (Repl. 1997). "Physical force" is defined as "any bodily impact, restraint, or confinement, or the threat thereof." Ark. Code Ann. § 5-2-601(3) (Repl. 1997). Viewing the evidence in the light most favorable to the State, the evidence in this case showed that physical force was employed against Witherspoon to beat him to the point of unconsciousness, and then he was taken, without consent, to a remote location and left there. Witherspoon testified that as he was being beaten, he heard someone saying, "Kill that MF, Millholland, kill that MF." From this evidence, a jury could conclude that Witherspoon was restrained without his consent by physical force; therefore, there is substantial evidence to support Millholland's kidnapping conviction.

Millholland also argues that there is insufficient evidence to support his conviction for robbery. A person commits the offense of 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). Millholland argues that there is no testimony that he used force to commit felony or misdemeanor theft. However, the above discussion indicates that there was sufficient evidence to show that physical force was used against Witherspoon. Furthermore, the jury could infer the intent to commit a felony or misdemeanor theft from Witherspoon's testimony that his shoes and clothes were missing, and that appellants took his truck, leaving him abandoned in a remote field.

Millholland also argues that there was insufficient evidence to support his conviction for battery in the third degree because Witherspoon never mentioned who hit him. A person commits battery in the third degree if "with the purpose of causing physical injury to another person, he causes physical injury to any person." Ark. Code Ann. § 5-13-203(a)(1) (Repl. 1997). Witherspoon testified that after he was hit, he struck Millholland in the chest, and then he heard a voice saying, "Kill that MF, Millholland, kill that MF." From this testimony, a jury could conclude that Millholland was the person who was hitting Witherspoon. Furthermore, physical injury was established by the medical testimony. There is sufficient evidence to support Millholland's conviction for third-degree battery.

Irwin appeals his convictions for kidnapping and robbery on the basis that the trial court erred in denying his motions for directed verdict. In those motions, he contended that there was insufficient evidence to show that he was an accomplice to the offenses of robbery and kidnapping. We find no error; therefore, we affirm.

Arkansas Code Annotated section 5-2-403(a) (Repl. 1997) defines "accomplice":

(a) A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Under the accomplice-liability statute, a defendant may be found guilty not only for his own conduct, but also for that conduct of his accomplice. Thomas v. State, 330 Ark. 442, 954 S.W.2d 255 (1997). When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both; there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id. In a case based upon circumstantial evidence, relevant circumstances include the presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense; however, the mere presence of a person at the scene of a crime is not proof of his guilt. Id.

Millholland's trial testimony places Irwin in the truck at the time they left Witherspoon stranded in a remote location. Millholland also testified that Irwin was driving the truck after they left Witherspoon. However, a person cannot be convicted of a felony on the testimony of an accomplice alone; there must be corroboration by other evidence that tends to connect the defendant with the commission of the offense. Ark. Code Ann. § 16-89-111(e)(1)(A) (1987). Corroboration is insufficient if it merely shows that the offense was committed and the circumstances thereof. Ark. Code Ann. § 16-89-111(e)(1)(B) (1987).

The test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice was totally eliminated, the other evidence, direct or circumstantial, independently establishes the crime and tends to connect the accused with its commission. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001). Corroborating evidence is not required to be so substantial to sustain a conviction in and of itself. Id. In Martin, the supreme court held:

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.

346 Ark. at 203, 57 S.W.3d at 139-40.

In the present case, we hold that there is sufficient evidence to independently establish the crime and to connect Irwin with its commission when Millholland's testimony is eliminated. Witherspoon's testimony clearly establishes the crime. Furthermore, there was evidence that tended to connect Irwin with the commission of the crimes. The city marshal of Arkansas City, Henry Gulley, testified that he saw Irwin at the Bear Claw on the night of the incident getting into a red truck, possibly a Chevrolet. Witherspoon's truck was a maroon Chevrolet Silverado. Witherspoon's keys were found on the floor in Irwin's room after he made the statement that he wanted to get his keys, and Millholland was found hiding underneath Irwin's bed. From Witherspoon's testimony that there were two people present while he was beaten, with one saying, "Kill the MF," the jury could reasonably infer that the second person was Irwin. Furthermore, Irwin initially denied knowing anything in his first statement, and in his second statement, he made incriminating remarks regarding the fact that if he placed himself in the truck, he would be an accessory. False and improbable statements may be considered as evidence of guilt. Martin, supra. Viewing the evidence in the light most favorable to the State, we hold that there is sufficient evidence to support Irwin's convictions under the accomplice-liability theory.

Affirmed.

Bird and Vaught, JJ., agree.

1 The record indicates that Witherspoon is African-American and the appellants are Caucasian.