Ashe v. State

• Decision Date: 16 April 1997
• Docket Number: No. CA,CA
• Citation: 942 S.W.2d 267,57 Ark.App. 99
• Parties: Leamon L. ASHE, Appellant, v. STATE of Arkansas, Appellee. CR 96-418.
• Court: Arkansas Court of Appeals

Page 267

942 S.W.2d 267

57 Ark.App. 99

Leamon L. ASHE, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 96-418.

Court of Appeals of Arkansas Divisions I and IV.

April 16, 1997.

Supplemental Opinion on Denial of

Rehearing May 21, 1997.

Donald A. Forrest, West Memphis, for Appellant.

Winston Bryant, Attorney General, Clint Miller, Deputy Attorney General, Little Rock, for Appellee.

BIRD, Judge.

Appellant Leamon Ashe was found guilty by a jury of theft of property and sentenced as an habitual offender to thirty years in the Arkansas Department of Correction and fined $5,000. A motion for judgment NOV, for new trial, and for reduction of sentence was filed, and on December 13, 1995, the trial court entered an order denying appellant a new trial but reducing his sentence to fifteen years with credit for time served. Both appellant and the State have appealed. Appellant argues that the trial court (1) should have granted his motion to dismiss for lack of sufficient evidence to convict, and (2) erred in departing from the model jury instruction. The State, as cross-appellant, argues that the trial court erred in reducing the defendant's thirty-year prison sentence, which had been fixed by the jury, to a sentence of fifteen years in the Arkansas Department of Correction.

At trial, Susan Foster testified that she was part owner of Clyde's Used Cars in West Memphis, Arkansas, and on May 5, 1995, she reported the theft of a 1983 greenish-gray Cadillac from her lot. She said she had sold the car the day before for $995, closed the business at about 5:30 p.m., and the next morning when the buyer came to pick the car up, it was gone. Ms. Foster said she did not see the vehicle again until she picked it up at the Memphis impound lot several weeks later. She also testified that she did not know Leamon Ashe and that no one at her business gave him authorization to use the vehicle.

G.R. Herbert, a Memphis police officer, testified that on June 26, 1995, he was dispatched to the Overton Manor Apartment Complex at 3046 St. Clair Place about 8:45 p.m. to look for a stolen car. He said that although this was a fairly large apartment complex, each apartment had its own number, and he found a 1983 gray Cadillac parked closest to and in front of 3046 St. Clair. He said the steering column was broken, the trunk lock was punched out, a tire was flat, and it had no license plate. Officer Herbert said he ran the vehicle identification number and found that the car was stolen so he had it towed to the impound lot.

C.I. Woodruff, another Memphis police officer, testified that he worked in the crime scene unit, took photographs, made diagrams of crime scenes, inventoried and tagged evidence, looked for latent fingerprints, and preserved evidence. He processed the Cadillac on June 27, 1995, and took pictures of the car that depicted the damage. Officer Woodruff said the only identifiable fingerprint he found was on the front corner of the rearview mirror, which was lying on the floorboard near the front passenger's seat.

Frank Stuckey testified to the procedure he used in taking appellant's fingerprints, and the fingerprint card was introduced into evidence without objection. Andre Nagoski testified that he is a latent fingerprint examiner for the Memphis police department, and he identified the fingerprint found on the rearview mirror in the floorboard of the Cadillac as matching the right ring finger of the appellant.

Memphis Police Officer Michael W. Allen testified that he had interviewed the appellant, who gave his address as 3046 St. Clair Place, Memphis, Tennessee, and said he had a sister who lived in West Memphis on South 11th Street, within a few blocks of Clyde's Auto Sales.

Appellant argues in his first point for reversal that the evidence was insufficient to support his conviction. A person commits theft of property if he knowingly takes or exercises unauthorized control over, or makes an unauthorized transfer of an interest in, the property of another person, with the purpose of depriving the owner thereof. Ark.Code Ann. § 5-36-103(a)(1) (Repl.1993). Our standard of review in a case such as this was stated by the Arkansas Supreme Court in Nichols v. State, 280 Ark. 173, 655 S.W.2d 450 (1983):

On appellate review of the sufficiency of the evidence, we seek to determine whether the verdict is supported by substantial evidence. We reiterated in Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980), that substantial evidence, whether direct or circumstantial, must be of "sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond suspicion or conjecture.... [T]he test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences." Evidence is not substantial whenever the fact-finders are left "only to speculation and conjecture in choosing between two equally reasonable conclusions, and merely gives rise to a suspicion." Surridge v. State, 279 Ark. 183, 650 S.W.2d 561 (1983). A directed verdict should be granted where there is no evidence from which the jury could have found, without resorting to surmise and conjecture, the guilt of the defendant. Fortner & Holcombe v. State, 258 Ark. 591, 528 S.W.2d 378 (1975). In Ravellette v. State, 264 Ark. 344, 571 S.W.2d 433 (1978), we said: "Where inferences are relied upon, they should point to guilt so clearly that any other conclusion would be inconsistent. This is so regardless of how suspicious the circumstances are."

Here, there is no evidence upon which the jury could base its convictions except upon surmise and conjecture. When the evidence is found insubstantial on appeal, the double jeopardy clause of our federal constitution requires a dismissal of the action. Roleson v. State, 277 Ark. 148, 640 S.W.2d 113 (1981); Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978); Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Nichols v. State, 280 Ark. at 175-76, 655 S.W.2d at 452.

Appellant submits that the State's only evidence against him was: (1) An unsubstantiated report that he had relatives living within two to four blocks of the car lot from which the car was stolen; (2) the car was found in Memphis, Tennessee, about a month after the theft, parked in front of 3046 St. Clair Place, which was the address appellant gave as his address; (3) a fingerprint matching one of appellant's fingerprints was found on the unattached rearview mirror that was lying on the floor of the car; and (4) a hearsay report about a "Crimestopper's tip" that led police to the car. Appellant submits various scenarios that would innocently explain these facts.

In determining the sufficiency of the evidence, it is necessary to ascertain only the evidence favorable to the appellee State, and it is permissible to consider only that testimony that supports a verdict of guilt. Gardner v. State, 296 Ark. 41, 67, 754 S.W.2d 518, 531 (1988). The evidence against appellant was circumstantial, but circumstantial evidence is sufficient to constitute substantial evidence. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990). In determining whether the evidence was substantial we consider only the evidence that supports the conviction without weighing it against other evidence favorable to the accused. Key v. State, 325 Ark. 73, 76, 923 S.W.2d 865 867-68 (1996); Farris v. State, 308 Ark. 561, 826 S.W.2d 241 (1992). Circumstantial evidence alone may constitute substantial evidence when every other reasonable hypothesis consistent with innocence is excluded. Nance v. State, 323 Ark. 583, 918 S.W.2d 114 (1996). Once the evidence is determined to be sufficient to go to the jury, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the jury to decide. Key, supra; Hadley v. State, 322 Ark. 472, 910 S.W.2d 675 (1995); Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993); Lolla v. State, 179 Ark. 346, 15 S.W.2d 988 (1929). The credibility of the witnesses who testify in a criminal trial is a matter for the jury to determine, and it may reject, in whole or in part, the testimony of any witness, including the defendant, who is the person most interested in the outcome of the trial. Moore v. State, 315 Ark. 131, 134, 864 S.W.2d 863, 865 (1993); Atkins v. State, 310 Ark. 295, 302, 836 S.W.2d 367, 371 (1992); Zones v. State, 287 Ark. 483, 702 S.W.2d 1 (1985).

In the instant case the State proved that appellant's sister lived within walking distance of the car lot from which the Cadillac was taken; when the car was located, it was parked directly in front of the apartment in which appellant lived; and one of appellant's fingerprints was found on the rearview mirror that was lying in the floor of the car.

Appellee informs us that many jurisdictions have held that the State puts before the jury substantial evidence when it proves that the defendant's fingerprints were found at the scene of the crime. See Annotation, Fingerprints, Palm Prints or Bare Footprints as Evidence, 28 A.L.R.2d 1115, 1150-55 (1953 and Later Case Service). Arkansas has followed this trend. In Tucker v. State, 50 Ark.App. 203, 901 S.W.2d 865 (1995), we reviewed our case law:

Fingerprints, under some circumstances, may be sufficient to sustain a conviction. See Brown v. State, 310 Ark. 427, 837 S.W.2d 457 (1992) (fingerprints found both on exterior window glass and inside the structure); Howard v. State, 286 Ark. 479, 695 S.W.2d 375 (1985) (fingerprint removed from exact place where robber was seen placing his hand as he vaulted into booth); Ebsen v. State, 249 Ark. 477, 459 S.W.2d 548 (1970) (fingerprints on both sides of a plate glass window that had been broken...