Ashley v. State, CA

• Decision Date: 22 July 1987
• Docket Number: No. CA,CA
• Citation: 732 S.W.2d 872,22 Ark.App. 73
• Parties: David ASHLEY, Appellant, v. STATE of Arkansas, Appellee. CR 86-225.
• Court: Arkansas Court of Appeals

Page 872

732 S.W.2d 872

22 Ark.App. 73

David ASHLEY, Appellant, v. STATE of Arkansas, Appellee.

No. CA CR 86-225.

Court of Appeals of Arkansas Division I.

July 22, 1987.

Baxter, Eisele, Duncan & Jensen by Ray Baxter, Benton, for appellant.

Steve Clark, Atty. Gen. by J. Brent Standridge, Asst. Atty. Gen., Little Rock, for appellee.

MAYFIELD, Judge.

A Pulaski County Circuit Court jury convicted appellant, David Ashley, of aggravated robbery and sentenced him to fifteen years in the Arkansas Department of Correction. He argues on appeal that the court erred in admitting into evidence certain identification testimony and that the evidence was insufficient to support the verdict.

In Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984), the Arkansas Supreme Court held that when there is a challenge to the sufficiency of the evidence, we must review that point prior to considering any alleged trial errors and, in doing so, we must consider all the evidence, including any which may have been inadmissible, in the light most favorable to the appellee.

There is evidence in the record that about 10:30 p.m. on November 20, 1985, the owner and a clerk of a liquor store in southwest Little Rock were sitting behind the counter at the front of the store when two white men entered. One of the men remained at the front while the other man, who was wearing a jacket and had his hands in his pockets, went to the back of the store and looked into a beer cooler and into the storeroom where customers were not authorized to go. A little while later, the man at the front took a beer from a cooler and asked the man at the back if he had what he wanted or if everything was okay, and the man said "Yeah." The owner of the store testified that this caused him to feel that something was going to happen so he got up and walked to the rear of the store, passing the man in the jacket who was returning to the front of the store.

About that time, the man in the front of the store pulled a pistol on the clerk, told him not to move, and that this was a robbery. The owner then emerged from the storeroom with a shotgun and yelled, the clerk dropped to the floor, and the men ran out the door and into the woods. The owner chased them for a distance and fired a shot in the air, but both men disappeared into the woods. Nothing was taken from the store and no one was hurt.

Several days later the store owner identified, from a photographic array, the appellant as the man in the jacket who went to the back of the store. He made the same identification at trial. Although the clerk identified the gunman, he was unable to identify the man in the jacket.

Robbery is committed when a person employs or threatens to employ physical force upon another with the purpose of committing a theft. Ark.Stat.Ann. § 41-2103 (Repl.1977). Aggravated robbery is committed if a person is armed with a deadly weapon when he commits a robbery. Ark.Stat.Ann. § 41-2102 (Supp.1985). A person is an accomplice of another if he aids another in planning or committing an offense. Ark.Stat.Ann. § 41-303 (Repl.1977). An accomplice is criminally liable for the conduct of another person. Ark.Stat.Ann. § 41-302 (Repl.1977).

Appellant relies on Hicks v. State, 271 Ark. 132, 607 S.W.2d 388 (1980), in support of his argument that he was only an innocent bystander during this episode and that the state failed to show he had the necessary intent to show accomplice liability. In Hicks, two black men and a black woman entered a 7-11 store. While the woman distracted the clerk, one of the men took several bills out of the cash register. After being apprehended, that person implicated Hicks. However, the pictures taken by a hidden surveillance camera showed only that Hicks stood near the cash register and near the other two people and that he had a bill in his hand. The court held this was insufficient evidence to sustain a conviction as an accomplice. The court stated:

The term accomplice does not embrace [one] who had guilty knowledge or who is morally delinquent; it includes only one who takes or attempts to take some part, performs or attempts to perform some act or owes some legal duty to the victim of the crime to prevent its commission; and mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of some legal duty to act, concealment of knowledge or failure to inform officers of the law, is not sufficient to make an accomplice.

271 Ark. at 136, 607 S.W.2d 388.

Appellant also cites Green v. State, 265 Ark. 179, 577 S.W.2d 586 (1979), in which our supreme court reversed and dismissed the conviction of a man who had entered a Church's Fried Chicken place and made a purchase. As soon as he returned to the car, his companions entered and robbed the restaurant. Although one of the accomplices testified that it was Green's job to see how much money was in the cash register, the court said:

The question of evidence necessary to corroborate an accomplice's testimony to the extent of allowing a case to be submitted to a jury is necessarily governed by the facts and circumstances of each case as it is presented. Evidence which is merely suspicious in nature is insufficient, or if it is as consistent with innocence as guilt, it is not enough to submit the question of the defendant's guilt to the jury.

265 Ark. at 182, 577 S.W.2d 586.

On appeal, we review the evidence in the light most favorable to the state and affirm if there is substantial evidence to support the conviction. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978). Substantial evidence is evidence that is of sufficient force and character that it will compel a reasonable mind to reach a conclusion one way or the other, but it must force the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980); Pickens v. State, 6 Ark.App. 58, 638 S.W.2d 682 (1982). Intent is a state of mind which is not ordinarily capable of proof by direct evidence, but it may be inferred from the circumstances. Johnson v. State, 7 Ark.App. 172, 646 S.W.2d 22 (1983). The fact that evidence is circumstantial does not render it insubstantial. Williams v. State, 258 Ark. 207, 523 S.W.2d 377 (1975). 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 factors in determining the connection of an accomplice with the crime. Redman v. State, 265...