Raymond Ray Porter v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

RAYMOND RAY PORTER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-976

June 30, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR2002-3775, CR2002-3776]

HON. CHRISTOPHER C. PIAZZA, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

This is a consolidated appeal of two separate cases that both involve the burglary of the Round Top Liquor Store. In CR02-3776, appellant Raymond Porter was charged with and convicted of commercial burglary and theft of property. He was charged with and convicted of commercial burglary, theft of property, and fleeing in CR02-3775. Appellant challenges the sufficiency of the evidence in CR02-3776, and appellant's counsel has filed a motion to be relieved and a no-merit brief in CR02-3775. We affirm the convictions in both cases, and grant counsel's motion to be relieved in CR02-3775.

I. CR02-3776

In CR02-3776, appellant was charged with commercial burglary and theft of property valued at $1500 or more. After a bench trial, appellant was convicted of commercial burglary and misdemeanor theft of property and was sentenced to 120 months' imprisonment and twelve months' imprisonment, respectively, with the sentences to run concurrently. A judgment and commitment order was entered on May 13, 2003, and a timely notice of appeal followed.

On April 10, 2003, a bench trial was held, where the court heard evidence regarding CR02-3776 (prior to hearing evidence on CR02-3775). Officer Travis Cumming testified that he was dispatched to the Round Top Liquor Store at 12:50 a.m. on August 9, 2002. When he arrived, the front door had been pried open. He recalled that items appeared to be missing and that a pry bar was found on the floor, as well as an empty Crown Royal box. He indicated that all of the liquor bottles were behind the counter and the area was in disarray. Because Chris Okpara, the store owner, told him that the pry bar was not his and that the liquor box should not have been on the floor, he sent the items to be fingerprinted. Officer Cumming thought that because the Crown Royal box was on the floor and not where it was supposed to be, there was strong possibility that the suspects had dropped it on the way out of the store.

Barbara Dimon of the Crime Scene Unit, testified that she was certified to perform the test to obtain fingerprints from an item, and she explained this procedure. She stated that she obtained fingerprints from the Crown Royal box, but was unable to obtain any from the pry bar. Mickey Holloway, also of the Crime Scene Unit, testified as an expert in the area of fingerprint analysis. He identified the prints lifted from the Crown Royal box as being appellant's right thumb and right little finger.

Chris Okpara testified that he owned the Round Top Liquor Store at 2503 Gaines Street in Little Rock. He also works at the EZ Mart on 17th and Broadway. He stated that on the evening in question, he had closed the store at 12:30 a.m., arrived home, and shortly thereafter received a phone call that his store had been broken into. He arrived at his store between two and three o'clock in the morning, at which time officers were already present. He stated that there was a liter or a fifth of Crown Royal on the floor. He added that the liquor was kept on a shelf behind the counter and that the area "where we put it was cleared." He testified that all of the cigarettes on and under the counter were gone, and estimated the value of property taken to be between $1500 and $1600. Mr. Okpara stated that appellant had never worked for him and that he did not know appellant, although his face looked familiar from the EZ Mart.

Testifying in his defense, appellant stated that he regularly shopped at the Round Top Liquor Store once or twice a day and made many purchases. He testified that he did not always buy the same brand of liquor and that he would often pick one item up and then put it down and decide to purchase a different item.

For his argument on appeal, appellant contends that the circuit judge erred in denying appellant's motion to dismiss because the State failed to introduce substantial evidence of appellant's guilt of commercial burglary and theft of property in that the State proved only that fingerprints from appellant's right thumb and little finger were found on an empty Crown Royal box inside a liquor store after a burglary had occurred.

Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, ___ Ark. ___, ___ S.W.3d ___ (April 22, 2004). When reviewing the denial of a directed verdict motion, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict and will affirm if there is substantial evidence to support the jury's conclusion. Id. Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Id.

Circumstantial evidence may constitute substantial evidence to support a conviction. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Evidence of guilt is not less substantial because it is circumstantial. Id. The longstanding rule in the use of circumstantial evidenceis that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; the test is one of substantiality. Id.

In his motion for directed-verdict, appellant argued that "the only proof there is here is that there's a fingerprint on a liquor bottle that was found in a store, and there's no proof beyond a reasonable doubt that Raymond Porter actually entered and remained inside that liquor store." A person commits commercial burglary if he enters or remains unlawfully in a commercial occupiable structure of another with the purpose of committing therein any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(b)(1). A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person, with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1).

In the present case, there was evidence that Mr. Okpara had closed the store shortly before the burglary. Upon returning to the store after the burglary, he told Officer Cumming that the pry bar found in the store did not belong to him and that the Crown Royal box found should not have been on the floor. Both Officer Cumming and Mr. Okpara testified that the liquor was kept behind the counter where the cigarettes were kept. Officer Cumming testified that because the pry bar did not belong to Mr. Okpara and because the Crown Royal box should not have been on the floor, he had the items fingerprinted, suspecting that the Crown Royal box had been dropped by the suspects on their way out. The crime lab witnesses testified that prints were lifted from the Crown Royal box and that they wereidentified as being appellant's right thumb and little finger.

Based on this circumstantial evidence, we believe that there was substantial evidence to support the conviction. Although appellant testified that he often picks up an item while shopping and puts it back after he changes his mind in an attempt to diminish the State's fingerprint evidence, the trial court sitting as the trier of fact found appellant not to be credible. It has been repeatedly stated that the appellate court does not attempt to weigh the evidence or assess the credibility of the witnesses, as that determination lies within the province of the trier of fact. Jones v. State, ___ Ark. ___, ___ S.W.3d ___ (Jan. 29, 2004). We are thus bound by the trier of fact's determination on the credibility of witnesses. Id.

Appellant recognizes that in Arkansas, fingerprint evidence has been held to be sufficient to establish the defendant's guilt in burglary or automobile theft cases where the defendant's fingerprints were found inside the structure or automobile, but argues that those cases are distinguishable because none of those cases involve a burglary of a commercial establishment where there was proof that the defendant was a regular customer of the establishment. In the present case, the only evidence that appellant was a regular customer of the liquor store was his own. The trial judge, sitting as the trier of fact, was not required to believe his testimony, and based on the court's decision, found him not to be credible and gave no weight to his testimony.

Appellant has also cited to caselaw from other jurisdictions for the proposition that "the discovery of the defendant's fingerprints on a readily moveable object in a residence or in a commercial establishment does not constitute substantial evidence of the defendant's guilt of the offense if the government's only evidence is the fingerprint evidence, unless the government introduces other evidence that eliminates the possibility that the fingerprints were left at any other time other than during the commission of the offense." See Mikes v. Borg, 947 F.2d 353 (9th Cir. 1991); United States v. Corso, 439 F.2d 956 (4th Cir. 1971); United States v. Jones, 433 F.2d 1107 (D.C.Cir. 1970); State v. Payne, 440 A.2d 280 (Conn. 1982); State v. Pierce, 527 N.W.2d 872 (Neb. App. 1995).1 However, this is not the law in Arkansas. As stated previously, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Ross, supra. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the trier of fact to decide. Id. Based on the facts of this case, we cannot say that the trial judge resorted to speculation and conjecture in reaching his verdict.

II. No. CR02-3775

In CR02-3775, appellant was charged with commercial burglary, theft of property with a value of $500 or less, and fleeing. After a bench trial, appellant was convicted of all three charges and sentenced to 120 months' imprisonment for commercial burglary, twelve months' imprisonment for theft of property and thirty days' imprisonment for fleeing, with the sentences to run concurrently. A judgment and commitment order was entered on May 13, 2003, and a timely notice of appeal followed on June 5, 2003. Appellant's counsel has filed a motion to be relieved and a no-merit brief arguing that there are no nonfrivolous issues of law or issues of fact or issues of law applied to fact that would support reversal of appellant's convictions for commercial burglary, theft of property with a value of $500 or less, and fleeing.

At trial, Officer Don Smith of the Little Rock Police Department testified that he responded to the Round Top Liquor Store at approximately 3:00 a.m. on September 18, 2002. As he approached from the west side of the store, he noticed that the doors were wide open. He got out of his car, called for backup, and walked around the outside of the store. When he approached the east side, he observed three black males, and called for them to stop. Two of the men were approximately fifteen yards ahead of the other. The one that was closest to him, whom he identified as appellant, turned and looked at Officer Smith, dropped a bag, and took off running. Officer Smith began to chase, and appellant turned east on 26th Street. As soon as Officer Smith turned on 26th Street, appellant was apprehended. Officer Smith and Officer Steve Wright found the bag that was dropped.

Officer Wright testified that he responded to the liquor store to help Officer Smith. He stated that Officer Smith advised on the radio that he was chasing subjects southbound through the alley between "Arch Street and Gaines Street, between Roosevelt and 26th Street." Officer Wright testified that he pulled his car across Arch and saw appellant running out of the alley, at which time he stopped and started walking slowly. Officer Smith then came running out of the alley and told him to get appellant. He apprehended appellant, and Officer Smith continued to chase the other subjects. Officer Wright then drove his car north through the alley and found a plastic shopping bag with two Crown Royal boxes, with the bottles and the velveteen bags inside. A third bottle was only in the velveteen bag. There was also a half-gallon of Crown Royal in the box on the west side of the alley. The owner of the Round Top Liquor Store, Chris Okpara, identified the Crown Royal recovered by Officer Wright as having come from his store. He also testified to the value of the property taken.

Appellant, testifying in his defense, explained his presence in the area and denied having anything to do with the burglary of the liquor store.

Pursuant to Anders v. California, 386 U.S. 738 (1967), and Rule 4-3(j) of the Rules of the Arkansas Supreme Court and Court of Appeals, appellant's attorney has filed a motion in CR02-3775 to withdraw as counsel on the ground that the appeal is wholly without merit. The motion is accompanied by an abstract and brief referring to everything in the record that might arguably support the appeal, including all motions, objections, and requests decided adversely to appellant and a statement of reasons why none of those rulings would be a meritorious ground for reversal. The clerk of this court furnished appellant with a copy of his counsel's brief and notified him of his right to file a pro se brief within thirty days. Appellant did file a brief.

The only ruling adverse to appellant was the denial of appellant's motions for directed verdict as to the burglary and theft-of-property charges. No motion was made as to the fleeing charge. Our standard of review of the denial of a motion for directed verdict has been stated above, as well as the elements of both commercial burglary and theft of property.

Appellant argued at trial that there was no evidence that he entered the store on the night in question. While the State did not offer any direct proof that appellant entered the store, there was circumstantial evidence introduced that constitutes substantial evidence of appellant's guilt. Appellant was in close proximity to the store just after someone had entered the store around 3:00 a.m. on September 18, 2002, causing the burglar alarm to alert. Appellant fled from the area near the store after Officer Smith told him to stop. Officer Smith saw appellant drop a bag before he ran away. Officer Wright recovered a plastic bag containing Crown Royal boxes and bottles from the area where appellant was taken into custody. Chris Okpara identified the Crown Royal boxes and bottles that the police recovered as coming from the Round Top Liquor Store.

It has been held that a defendant's proximity in time and place to the scene of a burglary, coupled with possession of stolen property therefrom has been held to constitute substantial evidence of burglary. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991). In addition, appellant's flight to avoid arrest can be considered as corroboration of evidence tending to establish guilt. Ferguson v. State, 298 Ark. 600, 769 S.W.2d 418 (1989). Although appellant testified at trial and denied any involvement in the burglary, the trier of fact does not have to believe his testimony. Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997) (stating that the trial court was not required to believe defendant's version of what occurred, especially since defendant had an interest in the outcome of the proceedings). Based on the evidence presented to the trial judge, there is substantial evidence to support the burglary and theft of property convictions.

Appellant filed his own pro se points of appeal, alleging only that he did not have access to legal materials so the case would have to go forward without argument from him. The State did not file a response to his statement as there was nothing from which to respond.

From our review of the record and the brief presented to us, we find compliance with Rule 4-3(j) and that the appeal is without merit. Accordingly, counsel's motion to be relieved is granted, and the conviction is affirmed.

Affirmed.

Baker and Roaf, JJ., agree.

1 We note that our research revealed that the Nebraska Supreme Court reversed the Nebraska Court of Appeals in State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995), and thus the proposition of law for which the case is cited is no longer correct in Nebraska.