Harris v. State

Derrick Lynell HARRIS v. STATE of Arkansas

CR 97-582                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 5, 1998


1.   Evidence -- directed-verdict motion treated as challenge to
     sufficiency of -- factors on review. -- A motion for a
     directed verdict is treated as a challenge to the sufficiency
     of the evidence; in reviewing a denial of a motion for a
     directed verdict, the supreme court reviews the evidence in
     the light most favorable to the State, and considers only the
     evidence that supports the verdict; the test for determining
     the sufficiency of the evidence is whether there is
     substantial evidence to support the verdict; evidence, whether
     direct or circumstantial, is substantial if it is of
     sufficient force that it would compel a conclusion one way or
     the other beyond speculation and conjecture; the supreme court
     will affirm if there is any substantial evidence to support
     the verdict.  

2.   Evidence -- weighing evidence and determining witness
     credibility -- left to trier of fact. -- The supreme court
     does not attempt to weigh the evidence or pass on the
     credibility of witnesses, that duty is left to the trier of
     fact; inconsistent testimony does not render proof
     insufficient as a matter of law; one eyewitness's testimony is
     sufficient to sustain a conviction; resolution of issues of
     credibility and conflicting versions of facts rests with the
     trier of fact. 

3.   Witnesses -- inconsistencies in testimony go to credibility --
     eyewitness testimony constituted substantial evidence to
     support convictions. -- Any inconsistencies in the witnesses'
     testimony went to their credibility, and the supreme court
     will not invade the province of the jury in weighing their
     credibility; here the supreme court concluded that the 
     testimony of the two eyewitnesses provided evidence of
     sufficient force to pass beyond speculation and conjecture,
     and therefore constituted substantial evidence to support the
     capital-murder and aggravated-robbery convictions.

4.   Appeal & error -- further sufficiency issues not reached --
     verdict supported by substantial evidence. -- Appellant raised
     the issue of sufficiency with regard to other pieces of
     evidence in his argument; however, the supreme court needed
     only to determine whether there was any substantial evidence
     to support the verdict; having concluded that the evidence was
     sufficient, the trial court's decision was affirmed.


     Appeal from Drew Circuit Court; Sam Pope, Judge; affirmed.
     John L. Kearny, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Derrick Harris was charged in the February 19, 1996,
shooting death of Jimmy Gathings, a Monticello used-car dealer.  At
the time of the incident, appellant was fifteen years old. 
Appellant was charged as an accomplice to capital murder and
aggravated robbery.  The State alleged that, while committing or
attempting to commit robbery and in the course and in furtherance
of that offense, appellant caused the death of Mr. Gathings under
circumstances that manifested extreme indifference to human life.
     At trial, the State called several witnesses, including two
witnesses, Albert Lambert, Jr., and Jerry Majors, who each
testified that he saw two men leaving the victim's office
immediately after hearing shots.  Both witnesses identified
appellant as one of these two men, and they testified that
appellant was carrying a gun when they saw him leaving.
     The jury convicted appellant of both charges.  The trial court
fixed appellant's sentence at life imprisonment without parole for
the capital-murder conviction, and merged the aggravated-robbery
conviction with it.  From these convictions, appellant brings this
appeal.
     On appeal, appellant raises a single point of error.  He
claims that the trial court erred in denying his motion for
directed verdict.  Appellant alleges that the State's evidence,
particularly the testimony of Albert Lambert, Jerry Majors, and the
victim's nephew, was so conflicting that it was insufficient to
sustain a jury verdict of guilty.  We hold that the evidence was
sufficient to go to the jury, and we affirm.
     We treat a motion for a directed verdict as a challenge to the
sufficiency of the evidence.  Passley v. State, 323 Ark. 301, 305,
915 S.W.2d 248, 250 (1996).  In reviewing a denial of a motion for
a directed verdict, we review the evidence in the light most
favorable to the State, and it is permissible to consider only the
evidence that supports the verdict.  Id.  Our test for determining
the sufficiency of the evidence is whether there is substantial
evidence to support the verdict.  Wilson v. State, 320 Ark. 707,
709, 898 S.W.2d 469, 470 (1996).  Evidence, whether direct or
circumstantial, is substantial if it is of sufficient force that it
would compel a conclusion one way or the other beyond speculation
and conjecture.  Id.  We will affirm if there is any substantial
evidence to support the verdict.  Id.
     Looking at the testimony of the State's two eyewitnesses, Mr.
Lambert and Mr. Majors, each witness testified unequivocally that,
after hearing "pow" or "banging" sounds, he saw appellant leave the
victim's office with a gun at his side.  Appellant contends that
these witnesses were biased and unreliable and that their testimony
should be discounted; however, the jury clearly did not believe
appellant's version of the facts.  Appellant points to
inconsistencies in the testimony on such issues as whether Mr.
Majors saw him come out of the building or around the building;
however, neither witness wavered in his identification of
appellant.
     We do not attempt to weigh the evidence or pass on the
credibility of witnesses.  That duty is left to the trier of fact. 
Mann v. State, 291 Ark. 4, 7-8, 722 S.W.2d 266, 268 (1987).  In
Rawls v. State, 327 Ark. 34, 937 S.W.2d 637 (1997), the appellant
similarly moved for a directed verdict at the end of the State's
evidence on the basis of inconsistencies and deficiencies in the
proof.  We specifically stated that inconsistent testimony does not
render proof insufficient as a matter of law.  Id. at 36, 937 S.W.2d  at 638.  We further stated that one eyewitness's testimony
is sufficient to sustain a conviction.  Id.  Resolution of issues
of credibility and conflicting versions of facts rests with the
trier of fact.  Wilson, 320 Ark. at 709, 898 S.W.2d  at 470.
     In the instant case, any inconsistencies in the witnesses'
testimony went to their credibility, and we will not invade the
province of the jury in weighing their credibility.  We conclude
that the testimony of Mr. Majors and that of Mr. Lambert provided
evidence of sufficient force to pass beyond speculation and
conjecture, and therefore constituted substantial evidence to
support the capital-murder and aggravated-robbery convictions.
     Appellant raises the issue of sufficiency with regard to other
pieces of evidence in his argument; however, we need only determine
whether there was any substantial evidence to support the verdict. 
Having concluded that the foregoing evidence was sufficient, we
affirm the trial court's decision.
     In compliance with Ark. Sup. Ct. R. 4-3(h), the record has
been examined for all objections, motions, and requests made by
either party that were decided adversely to appellant, and no error
has been found.
     Affirmed.