John Earl Walker v. State of Arkansas

Annotate this Case
ar04-2781

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JOHN EARL WALKER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-00278

December 15, 2004

APPEAL FROM THE CRITTENDEN COUNTY CIRCUIT COURT

[NO. CR-2003-118]

HON. RALPH WILSON,

JUDGE

AFFIRMED

Robert J. Gladwin, Judge

Appellant John Walker was convicted by a Crittenden County jury of Class B felony theft by receiving, sentenced to sixty months' imprisonment, and ordered to pay a fine of $1000. On appeal, appellant argues that the circuit court erred by denying his motions for directed verdict because the State failed to establish that he knew, or had reason to know, that the car he was driving when stopped by the police was stolen. We affirm.

On January 25, 2003, DeAndres Perry was approaching his car, a 1983 Pontiac Pariesienne, when two men wearing masks and carrying guns accosted him. He described the two men as black, with one of them having braids or cornrows and the other speaking with a northern accent. The men forced him into the back seat of the car, and the man with the northern accent got in behind him, held a gun to his head, and ordered him to undress. The man with the braids drove, and after Perry was naked and they had driven approximately three blocks, the men ordered Perry out of the car. Perry quickly redressed and contacted authorities about the incident. The incident occurred in Memphis, Tennessee, where Perry resided.

Five days later on January 30, 2003, Officer Freddie Williams of the Marion Police Department was running radar along northbound I-55. At approximately 11:00 a.m., Officer Williams saw a car traveling at a high rate of speed; accordingly, he clocked the vehicle with his radar unit, which twice clocked the speed of the car at seventy-six miles per hour in a sixty-five-mile-per-hour zone. As the car passed Officer Williams, he noticed that the vehicle had a "drive-out tag" rather than a license plate. He pulled out, followed the vehicle, activated his lights, and pulled the vehicle over, initially without incident.

Appellant was driving the vehicle, and his cousin, Anthony Harris, was in the front passenger seat. Officer Williams requested the relevant paperwork from appellant but was told that he did not have any. When asked how long he had had the vehicle, appellant responded, "Around two weeks." Officer Williams then asked both men for identification. Appellant provided a Tennessee driver's license, and Harris supplied a City of Milwaukee birth certificate for an individual named Levorice Ernest Funches. Officer Williams informed the two men that he was going to "run their information" and that, if everything came back okay, they would be free to go. Prior to returning to his patrol car, Officer Williams asked the two men if they had any guns or knives, and both men answered "no."

While Officer Williams was waiting on the background checks, he became suspicious when he noticed the two men talking in the vehicle and decided to speak to them separately. He walked back to the vehicle and asked appellant to come back to the patrol car with him. Appellant hesitated but did proceed to the patrol car when asked a second time. Appellant appeared nervous even after Officer Williams explained that he was not under arrest. He told appellant that he only wanted to talk with him, would be patting him down as a safety precaution,1 and would put him in the back of the patrol car to get him out of the traffic. At that time appellant did not tell Officer Williams that Harris had been holding him against his will or that Harris had weapons in the car.

Once appellant and Officer Williams were in the patrol car, Harris slid over to the driver's seat and drove off. A chase ensued and ended in a shoot-out between Harris and Officer Williams with Harris shooting Officer Williams in the face before he was shot and killed. A subsequent search of the vehicle revealed a semiautomatic .038-caliber weapon with seven rounds in the magazine and one live round in the chamber underneath the brake pedal and Harris's feet. A second semi-automatic weapon was found near Harris's hand with live rounds in the clip and one live round in the chamber. Officers additionally discovered a bill of sale for the vehicle in Perry's name under the front passenger seat and two Wisconsin license plates on the left rear passenger floorboard. The license plates had been on the previous vehicle of appellant's wife; however, appellant denied putting them into the vehicle. He stated that Harris would have had access to the license plates because he was living with appellant at the time, and that appellant thought Harris put them in the vehicle without appellant's knowledge.

After his arrest, appellant gave a statement to Investigator Harold Michael Middleton of the Arkansas State Police, telling him: (1) Harris was his cousin; (2) he was reluctantly driving Harris to Chicago when they were stopped by the police; (3) he was trying to talk Harris out of the trip when Harris lifted up his shirt and showed him two pistols; (4) he felt like he needed to listen to Harris or Harris might get mad. Appellant also told Officer Middleton that Harris had spoken to him when Officer Williams went to the patrol car to run their history, saying, "If he takes you out of the car, I'm gone." Appellant stated that Harris coerced him into taking Harris to Chicago and that he thought Harris must be in some kind of trouble; however, he claimed he was unaware that the vehicle was stolen.

At trial, appellant moved for a directed verdict at the close of the State's case and at the completion of evidence, asserting that the State had failed to produce sufficient evidence to support a conviction of theft by receiving, specifically, that there was no evidence that appellant knew, or had reason to know, that the car he was driving when stopped by the police was stolen. Appellant's motions were denied.

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that, in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Jones v. State, 336 Ark. 191, 984 S.W.2d 432 (1999).

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, 356 Ark. 156, ___ S.W.3d ___ (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, 107 S.W.3d 882 (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. Furthermore, "[a] jury need not lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct." Burley v. State, 348 Ark. 422, 431, 73 S.W.3d 600, 606 (2002). 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.

A person commits the offense of theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a). The unexplained possession or control by a person of recently stolen property or the acquisition by a person of property for a consideration known to be far below its reasonable value shall give rise to a presumption that he knows or believes that the property was stolen. Ark. Code Ann. § 5-36-106(c). For his motion for directed verdict, appellant argued that there was no evidence that he knew, or had reason to know, that the car he was driving when stopped by the police was stolen.

Appellant's argument amounts to nothing more than a challenge to the credibility of the witnesses and to conflicts in the testimony. He maintains that the State relied upon testimony from Officer Williams and appellant's statement to support its case but that all their evidence was circumstantial. Appellant asserts that the jury was required to look at other reasonable conclusions, see Geer, supra, and that he presented another reasonable conclusion as to why he possessed the vehicle. He stated that he believed his cousin was in trouble of some sort but that he had no reason to believe the car was stolen. He attempts to explain his inconsistent statements to the police regarding possession, ownership, and insurance related to the vehicle as attempts to protect both Harris and himself.

It is undisputed that appellant was stopped by the police while driving a stolen vehicle five days after it had been stolen and in relatively close proximity to the place where it had been stolen. He and Harris fit the description of the car-jackers provided to the police by Perry. Law enforcement officers testified as to appellant's repeated contradictions as to when and where he first saw the vehicle, whether or not he had purchased it, and why he did not have the appropriate paperwork. Appellant claims that he thought Harris somehow was in lawful possession of the vehicle although Harris: (1) had maintained no job during the time he was in Memphis; (2) had no driver's license and was using a false birth certificate for identification; (3) was seemingly on the run because he "coerced" appellant to drive him to Chicago, supposedly threatening him with the two guns; (4) had access to appellant's wife's old license plates and had placed them in the vehicle without appellant's knowledge.

Resolution of conflicts in testimony and assessment of witness credibility is for the fact-finder. Slater v. State, 76 Ark. App. 365, 65 S.W.3d 481 (2002). There was more than sufficient evidence offered to explain the suspicious circumstances and appellant's contradictory explanations for the jury to reasonably conclude that he knew, or had reason to know, that the vehicle was stolen. As substantial evidence supports appellant's conviction, we affirm.

Affirmed.

Hart and Baker, JJ., agree.

1 Officer Williams did not discover any weapons on appellant.