Evander Ridgel v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-010

DIVISION III

CACR05-10

NOVEMBER 9, 2005

EVANDER RIDGEL AN APPEAL FROM THE GRANT

APPELLANT COUNTY CIRCUIT COURT [CR-2003-72-2]

V.

STATE OF ARKANSAS HONORABLE PHILLIP H. SHIRRON, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

This is an appeal from a decision of a Grant County Circuit Court jury sentencing appellant, Evander Ridgel, to fifteen years' imprisonment for aggravated robbery. For reversal, appellant argues that the trial court erred in denying (1) his motion to suppress the out-of-court and in-court identification of him and (2) his motion for directed verdict. As there is no basis for reversal, we affirm.

On June 26, 2003, a patron came into Spann and Hardin Grocery requesting some meat. When owner Gene Spann brought the meat to the counter, he saw a man he recognized as the person who had stolen his billfold some ten or twelve years prior. Spann testified that, when he saw the man known to him as "Junior Relly," he knew he was in trouble. Once at the counter, Spann testified that the man pulled out a gun, stuck it into his face, shot down by his foot, and demanded that Spann give him all of his money.

At trial, Spann acknowledged that he was provided with several photo line-ups. OnJune 27, one day after the incident, Spann identified appellant as his robber, although appellant's hair looked different in the picture. Spann testified that appellant was in all subsequent photo line-ups that he saw. Subsequently, Spann unequivocally identified appellant five and a half months later in a live line-up. Moreover, in court, Spann identified appellant as the person who brandished the gun on June 26.

Detective Robert Byrd of the Grant County Sheriff's Department testified that, when he arrived at the scene, he encountered Gene Spann. Spann told Detective Byrd that the man that robbed him was black and around the age of twenty-three. Spann further noted that he recognized one of the men that robbed him because he believed that same individual had stolen his wallet approximately ten years before. Byrd testified that, according to Spann, he knew that man to have a last name that began with "R," and that he thought the last name Spann gave him was "Ridley or something to that effect." Byrd further testified that Spann believed that the suspect went by the name of Junior.

Byrd went back to his station to develop a photo line-up. Byrd noted that "the first time [Spann] saw a line-up with Evander Ridgel in it, [Spann] said that this look like the person, but he thought there was something different about the hair style." This identification, Byrd opined, was not enough of a positive identification to support a charge at that time. On August 25, Byrd arrested Arvin Hayes as a suspect in the robbery. Hayes implicated others, including appellant, as participants in the robbery. An arrest warrant was issued on August 25, and appellant was arrested on November 14. Following appellant's arrest, Byrd attempted another line-up. Spann was unable to identify anyone from that line-up, and Byrd testified that the photographs in that line-up were of poor quality. Eventually, Byrd conducted a live line-up in which Spann again identified appellant. During this line-up, Byrd testified that, when appellant (who was number five in the line-up) stepped forward,Spann immediately turned to him and stated, "That's him." Byrd further stated:

I told him let's finish the procedure. I went ahead and number 6 stepped forward and stepped back. I asked Mr. Spann if he recognized anybody and he responded that he did. I asked him who and he said number 5. I asked him where he recognized this person from, he said, "That's the man that robbed me." I clarified that that was the man with the gun and he said it was.

Special Agent Shannon Shepherd of the Arkansas State Police testified that the appellant went by the name of Junior. Shepherd lifted no usable fingerprint, and the gun used in the robbery was never recovered. Shepherd further indicated that, during the questioning of Arvin Hayes, Hayes implicated appellant and another individual in the robbery.

Hayes testified that he had taken a plea bargain in exchange for his testimony and that appellant was present when the robbery occurred. Hayes testified that he was in the car when the robbery took place and that he saw the men go into the store, rob the store, and come out of the store. He testified that he saw appellant run out of the store carrying a box full of money. During his testimony, Hayes referred to the appellant many times as "Junior." When asked, Hayes stated that when he said Junior, he was referring to appellant.

A person commits aggravated robbery if, with the purpose of committing a felony or misdemeanor theft, he employs or threatens to immediately employ force upon another while armed with a deadly weapon or while representing by word or conduct that he is so armed. Ark. Code Ann. ยง 5-12-103(a)(1) (Repl. 1997). Appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of any asserted trial errors. Flowers v. State, ___ Ark. ___, ___ S.W.3d ___ (May 5, 2005). A motion for a directed verdict challenges the sufficiency of the evidence. Hall v. State, ___ Ark. ___, ___ S.W.3d ___ (Apr. 14, 2005). The test for determining sufficiency of the evidence is whether substantial evidence, direct or circumstantial, supports the verdict. Jackson v. State, ___ Ark.___, ___ S.W.3d ___ (Oct. 7, 2004). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. The weighing of evidence lies within the province of the jury, and we are bound by its determination regarding the credibility of witnesses. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). On appeal, we review all of the evidence introduced at trial, whether correctly or erroneously admitted, in the light most favorable to the State and consider only the evidence that supports the verdict. Hall v. State, supra; Eichelberger v. State, 323 Ark. 551, 916 S.W.2d 109 (1996).

Appellant argues that the evidence is insufficient to support his conviction because Spann's positive identification of him was both suggestive and unreliable, and therefore, suspect. This argument ignores the plethora of other evidence that links appellant to the commission of this crime. In addition to Hayes's testimony regarding appellant's participation in the robbery, Spann recognized appellant. Prior to any photo line-up, Spann testified that he knew appellant as Junior; he knew his last name began with an "R"; and he recognized appellant from a previous incident where appellant stole his wallet. Even though Spann did not unequivocally identify appellant in the first line-up due to a difference in hairstyle, the testimony was that Spann, although hesitant, identified appellant as his assailant. A victim's initial doubt, when considering the totality of the circumstances, may not be enough to taint the in-court identification. See Hardrick v. State, 47 Ark. App. 105, 885 S.W.2d 910 (1994). Appellant argues second that the court erred in denying his motion to suppress the out-of-court and in-court identifications. The reliability of pre-trial identifications determine their admissibility and the admissibility of the in-court identification. Hardrick v. State, supra. It is appellant's burden to show the pre-trial identification procedure was unduly suggestive. Id. Moreover, we will not reverse a trialcourt's ruling on the admissibility of an in-court identification unless the ruling is clearly erroneous under the totality of the circumstances. Travis v. State, 328 Ark. 442, 944 S.W.2d 96 (1997).

It is for the trial court to determine if there are sufficient aspects of reliability surrounding the identification to permit its use as evidence. Bishop v. State, 310 Ark. 479, 839 S.W.2d 6 (1992). Further, the appellate court does not inject itself into the process of determining reliability unless there is a very substantial likelihood of irreparable misidentification. Travis v. State, supra. When determining reliability, the following factors are considered: (1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993).

Here, the victim testified that he was already familiar with appellant and recognized him when he came in the store on June 26. He provided the police with the description of a black male in his twenties, with the nickname Junior and a last name that began with "R." Further, Spann identified no other person prior to the pretrial identification procedure, and when he saw the first line-up one day after the robbery, he identified appellant as his assailant. On a subsequent line-up, Spann identified no one because of the poor quality of the pictures, but unequivocally identified appellant during a live line-up. The mere fact that the police presented to Spann several line-ups in which appellant was a possible suspect is insufficient to make a case of unreliability. See Jackson v. State, 318 Ark. 39, 883 S.W.2d 466 (1994) (the mere fact that an accused was given the same number in a lineup and in aphotospread has been held insufficient to make a case of unreliability). Moreover, there is no insinuation in the instant case that Detective Byrd sought to influence the identification by the method he used to present the photographs. See id. Accordingly, we affirm the trial court's decision to admit the identification testimony because, from the totality of the circumstances presented, it did not give rise to a substantial likelihood of irreparable misidentification. Spann gave strong, positive evidence that appellant was one of the men involved in the robbery. Moreover, after the identification testimony was admitted, the reliability of such testimony became a question for the jury. See Watkins v. Sowders, 449 U.S. 341 (1981).

Affirmed.

Bird, J., agrees.

Pittman, C.J., concurs.