Wilson v. State

Dechay WILSON v. STATE of Arkansas

CR 97-873                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 26, 1998


1.   Evidence -- challenge to sufficiency of -- factors on review.
     -- In reviewing a challenge to the sufficiency of the
     evidence, the supreme court views the evidence in a light most
     favorable to the State and considers only the evidence that
     supports the verdict; evidence, whether direct or
     circumstantial, is sufficient to support a conviction if it is
     forceful enough to compel reasonable minds to reach a
     conclusion one way or the other; the supreme court does not,
     however, weigh the evidence presented at trial, as that is a
     matter for a factfinder; nor will the court weigh the
     credibility of the witnesses. 

2.   Motions -- directed verdict -- requirements in criminal case.
     -- A motion for a directed verdict in a criminal case must
     state the specific ground of the motion; a motion for a
     directed verdict based on insufficiency of the evidence must
     specify the respect in which the evidence is deficient; a
     motion merely stating that the evidence is insufficient for
     conviction does not preserve for appeal issues relating to a
     specific deficiency such as insufficient proof on the elements
     of the offense. 


3.   Motions -- directed verdict -- motion sufficiently specific. -
     - Appellant's directed-verdict motion was sufficiently
     specific where it stated that the evidence was insufficient
     for a conviction because the element of identity was missing.

4.   Motions -- directed verdict -- properly denied. -- The trial
     court did not err in denying appellant's directed-verdict
     motion in view of the scientific evidence and the testimony of
     his accomplice.  

5.   Criminal law -- sentencing -- no error found. -- Appellant's
     argument that the trial court erred in sentencing him to life
     imprisonment was without merit; the trial court pronounced the
     sentences of thirty years for residential burglary and one
     year in the county jail for theft of property in accordance
     with the jury's recommendations; he then sentenced appellant
     to life imprisonment for the rape conviction and to sixty
     years for the aggravated-robbery conviction; there was no
     evidence that defense counsel's statements at the pretrial
     proceeding caused the trial court to be prejudiced against
     appellant.  

6.   Criminal law -- sentencing -- misdemeanor sentence will be
     satisfied by serving felony sentence. -- Although the
     sentences for aggravated robbery and rape were to be served
     consecutively, the one-year misdemeanor theft sentence was to
     be served concurrently with the thirty-year sentence for
     burglary, it thus would be satisfied by service of the felony
     sentence.  


     Appeal from Nevada Circuit Court; Jim Gunter, Judge; affirmed.
     Claudell Woods, for appellant.
     Winston Bryant, Att'y Gen., by:  Kelly S. Terry, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     Dechay Wilson stands convicted of theft of property,
residential burglary, aggravated robbery, and rape.  A jury fixed
his sentence at one year for theft and thirty years for burglary. 
Because the jury could not agree on a sentences for aggravated
robbery and rape, the Trial Court sentenced Mr. Wilson for those
offenses.  The sentences were imprisonment for life for rape and
sixty years for aggravated robbery.  Mr. Wilson argues that the
evidence was insufficient to support a finding of guilt.  We reject
this argument due to the testimony of Mr. Wilsonþs accomplice that
Mr. Wilson committed the crimes and corroborating scientific
evidence.  Mr. Wilson also contends that the Trial Court erred in
sentencing him to life in prison.  Although Mr. Wilson makes
several arguments in support of that contention, we decline to
review all but one of them, as they were not made to the Trial
Court.  We consider only the argument that the Trial Court should
not have sentenced Mr. Wilson due to the Trial Court's awareness
that he was not co-operating with defense counsel.  The judgment is
affirmed.
     Helen Morris, the sixty-nine-year-old victim, testified that
on the night of April 20, 1996, she was dozing in her living room
after coming home from work.  She noticed that some items in the
room looked as if they had been moved, but she did not see anyone. 
Then, she saw two men standing in her dining room.  One was taller
than the other, and each wore something over his head.  Mr. Wilson
is about the size of the shorter of the two. They asked her where
her money was and told her to be still.  One threw a quilt over her
head while they went through her house and threw items around. 
After the two men rummaged through her house, the shorter man raped
her.  Then, the taller man raped her.  After raping her, they
forced her to look for her purse.  When she found the purse, the
shorter man grabbed it, emptied it, and counted the money.  They
left her home with the money.
     After the police arrived at Ms. Morris's home, a family member
took her to the hospital where she was examined.  Oral, vaginal,
and rectal swabs, a saliva disk, a blood tube, and pubic hairs were
collected.
     Jared Woodley, who had pleaded guilty to theft, residential
burglary, aggravated robbery, and rape, initially testified that
Mr. Wilson did not accompany him.  He admitted, however, that in
two prior statements to investigating officers and when he entered
his guilty plea, he said that Mr. Wilson went with him to the home
of Ms. Morris, and that Mr. Wilson stole her money and raped her. 
Ultimately, Mr. Woodley gave detailed testimony about his and Mr.
Wilson's acts, including raping Mrs. Morris and stealing her money
at knife point.
     Kermit Channell, DNA supervisor for the State Crime
Laboratory, testified that the DNA that he recovered from the
rectal swab was consistent with the DNA that was recovered from the
blood sample from Mr. Wilson. He testified that the probability of
someone else leaving that particular stain on the rectal swab is
approximately one in 210,000 in the black population.  He testified
that the DNA that was extracted from the vaginal swab was
consistent with DNA from Mr. Wilson, and the probability of someone
else leaving that semen would be one in 160,000,000 in the black
population.  He testified that the population numbers for the
rectal swab and the vaginal swab differ because, with the rectal
swab, he only obtained results from six of seven possible tests due
to a degradation of a particular chromosome, but with the vaginal
swab, he obtained results from all seven tests.
     Donald E. Smith, a criminalist with the State Crime
Laboratory, testified that he discovered a hair fragment in Ms.
Morris's home that , in his opinion, was a pubic hair from Mr.
Wilson.  
                 1.  Sufficiency of the evidence
     Following the State's presentation of its case, defense
counsel moved for a directed verdict by stating the following:

     Judge, I move for a directed verdict and the basis for
     that is that there's been an insufficient amount of
     evidence produced at this point by the prosecution to
     support their charges or to support it going to a jury of
     the charges that the defendant committed the acts of
     rape, aggravated -- I'm sorry, aggravated robbery, theft
     of property or burglary.  And the basis for this the
     disparity between the amount of evidence collected versus
     that actually that purports to point to the defendant as
     the person committing the acts.  (Emphasis added.)  

The Trial Court denied the motion.  The renewed motion was also
denied.
     Mr. Wilson argues that the Trial Court erred in denying his
motion for a directed verdict because the only evidence that tended
to incriminate Mr. Wilson was not credible based on the following: 
(1) Mr. Woodley gave varying statements about Mr. Wilson's
participation; (2) the scientific evidence was not sufficiently
specific; and (3) the victim was unable to identify the appellant.
     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.  Walker v.
State, 330 Ark. 652, 955 S.W.2d 905 (1997).  Evidence, whether
direct or circumstantial, is sufficient to support a conviction if
it is forceful enough to compel reasonable minds to reach a
conclusion one way or the other. Id.  We do not, however, weigh the
evidence presented at trial, as that is a matter for a factfinder.
Id.  Nor will we weigh the credibility of the witnesses. Id. 
     The State contends that Mr. Wilson's sufficiency argument is
not preserved for our review because his motion for directed
verdict was not sufficiently specific.  A motion for a directed
verdict in a criminal case must state the specific ground of the
motion.  Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994),
interpreting Ark. R. Crim. Pro. 36.21 (now Rule 33.1).  Rule 33.1
provides:

     . . . A motion for a directed verdict based on
     insufficiency of the evidence must specify the respect in
     which the evidence is deficient; a motion merely stating
     that the evidence is insufficient for conviction does not
     preserve for appeal issues relating to a specific
     deficiency such as insufficient proof on the elements of
     the offense.  . . .   

See Bragg v. State, 328 Ark. 613, 946 S.W.2d 654 (1997).
     Mr. Wilsonþs motion sufficiently specified that the evidence
was insufficient for a conviction because the element of identity
was missing.  See Green v. State, 310 Ark. 16, 832 S.W.2d 494
(1992).   The Trial Court did not err in denying Mr. Wilsonþs
directed verdict motion in view of the scientific evidence and the
testimony of Mr. Woodley.  

                         2.  Sentencing
     Mr. Wilson argues that the Trial Court erred in sentencing him
to life imprisonment.  There is no contention that it was error for
the Trial Court to assume the sentencing role after the jury
reported its inability to reach a sentence on two of the offenses
of which Mr. Wilson stood convicted.  Rather, the objection had to
do with the Trial Court's awareness that defense counsel had
experienced difficulties in representing Mr. Wilson due to his
failure to cooperate; apparently an argument of bias.  At a
pretrial proceeding, defense counsel stated that Mr. Wilson had not
cooperated with him in planning a strategy for trial or in
compiling a witness list to support Mr. Wilson's claim that he had
an alibi.  The Trial Court stated that his knowledge of that fact
would have nothing to do with his decision.  
     The Trial Court pronounced the sentences of thirty years for
residential burglary and one year in the Nevada County jail for
theft of property, in accordance with the jury's recommendations. 
He then sentenced Mr. Wilson to life imprisonment for the rape
conviction and to sixty years for the aggravated robbery
conviction.
     Mr. Wilsonþs sentencing argument is without merit.  There is
no evidence that defense counsel's statements at the pretrial
proceeding caused the Trial Court to be prejudiced against Mr.
Wilson.  
     Finally, on this point, we note that, although the sentences
for aggravated robbery and rape are to be served consecutively, the
one-year misdemeanor theft sentence is to be served concurrently
with the thirty-year sentence for burglary.  It thus will be
satisfied by service of the felony sentence.  See Ark. Code Ann. 
5-4-403(c) (Repl. 1997); Howard v. State, 289 Ark. 587, 715 S.W.2d 440 (1986).                     

                         4.  Rule 4-3(h)
     In accordance with Ark. Sup. Ct. R. 4-3(h), the record has
been reviewed for erroneous rulings prejudicial to Mr. Wilson, and
none has been found.
     Affirmed.