DeLarron Keith Washington v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR04-18

OCTOBER 27, 2004

DELARRON KEITH WASHINGTON AN APPEAL FROM THE UNION COUNTY

APPELLANT CIRCUIT COURT [CR-2002-0487]

v.

STATE OF ARKANSAS HONORABLE HAMILTON H. SINGLETON, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Appellant DeLarron Keith Washington was charged and convicted of residential burglary, first-degree battery, and aggravated robbery. He was sentenced to forty years' imprisonment. On appeal, appellant challenges the sufficiency of the evidence. We affirm.

The testimony at trial was as follows. Terry Gafford testified that on August 28, 2000, he and his family were awakened at approximately 4:00 a.m. by three men holding flashlights and yelling, "Police, put your hands up." He stated that the men had on masks and guns and showed no type of law enforcement identification. Gafford testified that two of the men came into his bedroom. One of the men - whom Gafford described as being about five- foot-ten and two hundred eighty pounds - put a gun to his wife's head; the other man, whom Gafford described as tall and thin bound Gafford's hands behind him with wire ties and started hitting him with a gun.

Gafford testified that the men subsequently went through dresser drawers. They took a silver chain and $475. Gafford testified that the men repeatedly asked for money, and he told them that there was more money in the shop behind the mobile home. While one of the men stayed inside with Gafford's wife and children, who were also bound with duct tape and zip ties, the other men took Gafford outside to the shop. Before taking him outside, Gafford testified that the men were talking about how they had killed "D" Black, whom Gafford stated he knew from working on his car.

Gafford informed the men that there was money located in paint cans. When the men split up to search for the money, Gafford grabbed the taller of the two perpetrators and started tussling for the gun. While they were tussling, the two-hundred-eighty pound perpetrator shot Gafford. Gafford continued to struggle with the man to get the gun and was thereafter shot two more times. During the ensuing struggle, Gafford managed to shoot the man who had shot him. Gafford testified that "[a]s the other guy was walking to shoot again I pointed [the gun] at him, right in his face[.]" Gafford stated that the man yelled, "I got shot." Gafford stated the perpetrators dropped everything and ran at that point.

Andrew Russell, a patrolman for the El Dorado Police Department, responded to the call at the Gafford home. Once there, Russell found Gafford lying up against the wall of the workshop. Gafford had blood on his head, torso and legs and informed Russell that he had been shot. Russell testified that Gafford told him that, when he (Gafford) went for the gun, the second suspect came over and shot him in the left lower back area. Gafford told Russell that the gun he was fighting over went off and hit the man who had shot him.

Sergeant Michael Leveritt of the El Dorado Police Department was also involved in the investigation. He testified that he assisted in the gathering of evidence and that there were definitely signs of a struggle due to the amount of blood found inside and outside the shop area. Found in the yard were duct tape and zip ties. Leveritt and Lieutenant Billy White undertook the preservation of the scene and recovered blood samples from various areas, including the shop floor and the concrete culvert close to the roadway. These items were sent to the state crime lab.

Lieutenant Jim Wade was also involved in the shooting investigation. He testified that during the investigation officers were informed by the Camden Police on August 28, 2000, that a shooting victim had been admitted to the hospital in Camden at 5:39 a.m. Wade went to Camden to interview the victim, who turned out to be the appellant. Wade stated that appellant had undergone surgery and was unable to speak at length or very clearly due to a facial injury. Wade testified that appellant agreed to submit a blood sample. A technician took the sample in the presence of Officer Wade and the sample was also sent to the state crime lab.

Terry Rolfe, a forensic biologist with the Arkansas State Crime Lab, testified that he performed the DNA testing in this case. He revealed that the DNA identified on one of the swabs from the crime scene matched the DNA profile that was obtained from appellant's blood sample.

Appellant testified on his own behalf. He testified that he was associated with Terry Gafford through a man named E.C. Chapman. Appellant stated that E.C. Chapman was a middle man through whom drugs and money had been exchanged between him and Gafford. On this occasion, appellant testified that he had previously received drugs from Gafford and that he was looking to purchase a pound of methamphetamine from a man named "D" Black, a drug transporter from Houston, Texas. Gafford, appellant testified, was keeping the drugs at his home. Appellant testified that at 3:00 a.m. on August 28, 2000, he received a phone call from E.C. Chapman that the drugs were on the way and to bring the money to the Gafford home. Appellant testified that he got out of bed and drove to El Dorado. When he arrived between 3:30 and 3:45, appellant stated that he got out of his car with the money bag and headed toward the garage where he saw a light. When he got to the door of the garage, he testified that someone was standing over the door on a ladder. When he walked to the door, appellant testified:

[H]e came off the ladder and they were wrestling. Then the gun went to firing off. I was on parole. I could not sit there and say I was going to buy drugs because they would have instantly sent me back to the penitentiary. As soon as I got shot I turned and ran. There were several shots. I don't think that it was four shots because guns were going off everywhere. I did not have a mask on. I did not participate in a robbery. . . . Everyone knows that that was where the drug deals were going down. Inside of there he was keeping the drugs inside of those cars that he was supposed to be painting or fixing up. I dropped the bag that had the money. I did not get the drugs. There was a guy there. He had a duffle bag on his shoulders and was loading stuff into the duffle bag. I stayed there for approximately forty-five seconds. There wasn't anybody arguing or yelling loud enough when I walked up to the door.

Appellant was subsequently convicted and sentenced to prison. On appeal, he asserts that the evidence was insufficient to support a judgment of guilt. We disagree.

Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 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.

Appellant and the evidence gathered by the police place him at the scene of the crime. Gafford's description of his assailant is similar to that noted in appellant's hospital records, specifically that appellant was two hundred seventy-five pounds and six-foot-one. Further, the facial injury appellant sustained is in the exact place Gafford testified that he aimed when the perpetrator neared him in his shop. The fact that evidence is circumstantial does not render it insubstantial; where circumstantial evidence is relied upon, however, it must exclude every other reasonable hypothesis but the guilt of the accused. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001). Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Isom v. State, ___ Ark. ___, ___ S.W.3d ___ (Feb. 19, 2004). Such a determination is a question of fact for the fact-finder to determine. Id.

The fact that appellant gave a different explanation for his presence at the scene is of no avail, as the jury is not required to believe any witness's testimony, especially the testimony of the accused, because he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark. App. 365, 105 S.W.3d 789 (2003). The credibility of witnesses is an issue for the jury and not the court. Isom v. State, supra. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. We will disturb the jury's determination only if the evidence did not meet the required standards, thereby leaving the jury to speculation and conjecture in reaching its verdict. Id.

As substantial evidence supports appellant's convictions, we affirm.

Affirmed.

Griffen and Roaf, JJ., agree.