Passley v. State, CR

• Decision Date: 05 February 1996
• Docket Number: No. CR,CR
• Parties: Thomas Roy PASSLEY, Jr. a/k/a Douglas Lee Bolkema, Appellant, v. STATE of Arkansas, Appellee. 95-903.
• Court: Arkansas Supreme Court

Page 248

915 S.W.2d 248

323 Ark. 301

Thomas Roy PASSLEY, Jr. a/k/a Douglas Lee Bolkema, Appellant, v. STATE of Arkansas, Appellee.

No. CR 95-903.

Supreme Court of Arkansas.

Feb. 5, 1996.

Kent McLemore, Fayetteville, for appellant.

Kent G. Holt, Asst. Attorney General, Little Rock, for appellee.

ROAF, Justice.

Appellant Thomas Roy Passley, Jr., was convicted of eleven counts of residential burglary and nine counts of theft of property for crimes committed over a two day period. He was sentenced as an habitual offender to eighty years imprisonment. On appeal, Passley asserts that the trial court (1) abused its discretion in failing to sever the March 15, 1994, burglaries from the March 16, 1994, burglaries, (2) abused its discretion by allowing the introduction of a tape of a "911" call in violation of A.R.E. Rule 403, and (3) erred in failing to grant Passley's motions for directed verdict. We affirm.

Ms. Peggy Swingel testified that at approximately 1:50 p.m. on March 16, 1994, someone began ringing her doorbell, but she did not answer the door. Subsequently, someone began kicking the back door. She entered her living room in order to reach a cordless telephone, and she could see that someone was in her kitchen. She called "911," and the intruders left her home. She reported that two men just left her home in a gray or blue-gray car, possibly a Thunderbird. Jovey Marshall of the Washington County Sheriff's Office testified that he received the "911" call at approximately 1:50 p.m. and a Thunderbird was stopped at approximately 1:54 p.m.

Morton Marshall, Farmington Chief of Police, was dispatched in response to the call and he encountered a blue Thunderbird. Chief Marshall pursued the vehicle and observed that there were two women and two men in the vehicle. After the vehicle stopped, the two men escaped. Co-defendants Michelle Vincent and Tammy Johnson a/k/a Lisa Faye Bradish were apprehended in the Thunderbird. The two men, the appellant and Warren (Morn) Franklin Passley III, were captured approximately ten minutes later.

The appellant a/k/a Douglas Lee Bolkema and the three co-defendants were charged by felony information with thirteen counts of burglary and twelve counts of theft of property. The crimes were allegedly committed on February 7, 1994, March 4, 1994, March 15, 1994, and March 16, 1994. The information alleged that the defendants entered homes on February 7 and March 4 and took property valued in excess of $2,500.00. The information provided that on March 15 the defendants burglarized six homes and on March 16 the defendants burglarized four homes. Further, the information alleged that the defendants took property valued in excess of $2,500.00 from five of the homes; property valued in excess of $200.00 from three of the homes; and property valued at less than $200.00 from two of the homes. Finally, the information charged the defendants with burglary for entering the home of Peggy Swingel on March 16.

The Thunderbird in which the defendants were riding was owned by Tammy Johnson, the appellant's wife. A number of items from the burglaries committed on March 15 and March 16 were found either in pillow cases in the trunk of the car or in the possession of the defendants. A ring, watch, and knife were found on the appellant when he was apprehended. The ring was identified as one taken in a March 16th burglary, and the knife and watch were identified as taken in a March 15th burglary. Property taken on those dates from seven other homes was also recovered from either the Thunderbird or the co-defendants.

Mrs. Marjie Million testified that Tammy Johnson is her niece. Mrs. Million further testified that Tammy Johnson, Thomas Roy Passley, Jr., Warren Franklin Passley III, and Michelle Vincent stayed in her home on March 15 and March 16, 1994. A Ford Mustang owned by Warren Passley was recovered from the Million residence. Property belonging to victims of both the March 15 and March 16 burglaries was recovered from either the Mustang or the Million's residence.

Ms. Swingel identified Tammy Johnson's Thunderbird as the vehicle that she observed the day her home was burglarized. She further testified that she could identify Warren Passley as one of the intruders, but she did not get a good look at the second person. Deputy Sheriff Charles Rexford testified that the tread patterns on the appellant's shoes were similar to the print observed on the door of Ms. Swingel's residence.

The jury found the appellant not guilty of the crimes allegedly committed on February 7 and March 4. Further, the trial court refused to instruct the jury regarding the theft of property charge arising out of the burglary of Kirk Cunningham's residence. The jury, however, found the appellant guilty on the twenty remaining charges.

1. Sufficiency of the evidence

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 321 Ark. 635, 906 S.W.2d 677 (1995). Preservation of an appellant's right to freedom from double jeopardy requires a review of the sufficiency of the evidence prior to a review of trial errors. Davis v. State, 319 Ark. 460, 892 S.W.2d 472 (1995). Consequently, we address appellant's challenge to the sufficiency of the evidence prior to considering his other assignments of trial error. Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994).

On appeal, the appellant contends the "record is void of evidence physically placing him in any of the homes" and there is no evidence that he "knowingly possessed any of the victims' property with the intent to deprive them thereof." When reviewing the sufficiency of the evidence on appeal, we do not weigh the evidence but simply determine whether the evidence in support of the verdict is substantial. Williams v. State, supra. Substantial evidence is that which is forceful enough to compel a conclusion one way or the other and pass beyond mere suspicion and conjecture. Drummond v. State, 320 Ark. 385, 897 S.W.2d 553 (1995). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the appellee, and it is permissible to consider only that evidence which supports the guilty verdict. Williams, supra. Further, circumstantial evidence may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995). Whether a reasonable hypothesis exists is for the trier of fact to resolve. Id.

The jury was given, without objection, an accomplice liability instruction. See AMCI 2d 401. Arkansas Code Annotated § 5-2-403(a) (Repl.1993) provides that a person is an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Purifoy v. State, 307 Ark. 482, 822 S.W.2d 374 (1991). Under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by that conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Id. Finally, there is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.

Granted, we have stated that stolen goods recovered from a dwelling shared by an accomplice is not sufficient corroboration standing alone. Daniels v. State, 308 Ark. 53, 821 S.W.2d 778 (1992). However, possession of stolen property by the accused is a proper circumstance to consider in determining whether there was evidence tending to connect him with the crimes of burglary and grand larceny. Id. Further, the presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime. Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993); see also Redman v. State, 265 Ark. 774, 580 S.W.2d 945 (1979). Finally, we have held that a person's flight to avoid arrest may be considered as corroboration of evidence tending to establish his guilt. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (1994); Killcrease v. State, 310 Ark. 392, 836 S.W.2d 380 (1992).

The proof at trial was amply sufficient to establish the joint nature of appellant's activities with the co-defendants. The appellant was apprehended with the three co-defendants, one of whom was his wife who admitted her involvement in the crimes. The appellant was apprehended a short time after the "911" call by Ms. Swingel, and Ms. Swingel identified the vehicle in which the appellant was riding. There was testimony that the tread patterns on the appellant's shoes were similar to the print observed on the door of Ms. Swingel's residence. The appellant was staying in the same home as the co-defendants. At the time of his arrest, the appellant was in possession of stolen property. Further, property taken in all the burglaries, with the exception of the burglary of the Swingel home, was recovered either on the appellant, in the Thunderbird, in the Mustang, or at the Million's residence. Finally, the appellant attempted to flee when he was confronted by the police. In short, the State was not required to prove that the appellant physically entered the home of each victim with the intent to deprive them of their property.

2. Severance of offenses

Prior to trial, the appellant moved to sever the burglary offenses on the basis that they were joined solely because they were of similar character, but they were not part of a single scheme or plan. In denying the appellant's motion, the trial court concluded the burglaries were part of a single scheme or plan. At trial, the appellant renewed his motion for severance prior to the introduction of any testimony...