Parker v. State

• Decision Date: 29 January 2004
• Docket Number: No. CR 03-889.,CR 03-889.
• Citation: 144 S.W.3d 270,355 Ark. 639
• Parties: Ester Lee PARKER v. STATE of Arkansas.
• Court: Arkansas Supreme Court

144 S.W.3d 270

355 Ark. 639

Ester Lee PARKER v. STATE of Arkansas.

No. CR 03-889.

Supreme Court of Arkansas.

January 29, 2004.

Appeal from the Circuit Court, Desha County, Don Edward Glover.

Gary W. Potts, Monticello, for appellant.

Mike Beebe, Att'y Gen., by: Clayton K. Hodges, Ass't Att'y Gen., Little Rock, for appellee.

DONALD L. CORBIN, Justice.

Appellant Ester Lee Parker appeals the order of the Desha County Circuit Court convicting him of armed robbery. On appeal, he argues that the trial court erred in (1) denying his motion for a directed verdict; (2) denying his motion for a mistrial; and (3) sentencing him to a term of life imprisonment. Our jurisdiction is pursuant to Ark. Sup.Ct. 1-2(a)(1). We find no error and affirm.

This case stems from an armed robbery of Betty's Grocery on July 30, 2002. According to the record before us, at approximately 4:00 p.m., a car pulled into the parking lot, and the driver exited the vehicle and opened its hood. Shortly thereafter, two men entered the grocery store. The first man entered and headed toward the store's coolers, while the second man entered and quietly closed the door behind him. According to Patsy Lay, an employee, when the second man entered, he had his hand down beside his leg. Lay spoke to both men, but neither responded. When Lay looked back toward the first man, he was walking back toward the second man, who then pointed a shotgun at Lay. Lay identified the first man as Appellant. Joshua Jenkins, who Lay identified as the second man to enter the store, demanded she give them the money out of the cash register. According to Lay, Appellant then took the money from her. Both men exited and got into the car that had pulled into the parking lot. Lay testified that the car was driven by Edward Dunmore and that he was the person who got out of the car and kept looking under its hood.

Tobe Burnett, Chief of Police of Mitchellville, was contacted by the Desha County Sheriff's Office and asked to set up a roadblock following the robbery. Shortly thereafter, a vehicle approached at a high rate of speed and went between Burnett's vehicle and a nearby fire hydrant, hit another car, and landed in a ditch. The three occupants then abandoned the vehicle, first throwing a shotgun into a ditch. Each of the men subsequently fled in a different direction.

Ronnie Mankin, an investigator with the Desha County Sheriff's Office, was notified that there had been a robbery at Betty's Grocery and was given the license number of the vehicle the suspects fled in. Mankin was then informed that the vehicle had been wrecked in nearby Mitchellville, and its three occupants had fled the scene. While searching that area, Mankin discovered a sawed-off, twenty-gauge shotgun with tape on it. The gun was discovered about sixty to seventy feet from the abandoned vehicle. Police later discovered that the vehicle was registered to Maples Smith Dunmore, mother of Edward Dunmore, who contacted the Desha County Sheriff's Office shortly after the wreck. Police questioned Dunmore, and information that he provided led police to eventually arrest Jenkins and Appellant. Appellant, however, left the area shortly after the robbery and was not arrested until December 2002.

After his arrest, Appellant provided authorities with a statement denying any knowledge that a robbery was going to take place. In that statement, Appellant stated that on the day of the robbery, he was at his sister's house with Jenkins, when Dunmore drove by. Appellant asked Dunmore to give him and Jenkins a ride so he could locate some people in a car that he had had problems with earlier in the day. According to Appellant, the three men began riding around and drinking and ended up at Betty's Grocery. Appellant stated that he went into the store to get some more liquor when Jenkins suddenly came in and pulled a shotgun on the store's employee and told her to give him the money. Appellant stated that the employee then gave him the money, and he and Jenkins left the store. After leaving the car in Mitchellville, Appellant said all three men simply went their separate ways and that he never received any of the money from the robbery.

Initially, authorities charged Appellant, Dunmore, and Jenkins each with one count of aggravated robbery, a Class Y felony, and one count of theft of property, a Class C felony. Prior to Appellant's trial, however, Dunmore pled no contest to a charge of hindering apprehension and was sentenced to ten years' probation. In exchange for his plea, Dunmore agreed to testify truthfully against Appellant and Jenkins.

Appellant was tried by a jury on April 14, 2003. At the conclusion of all the evidence, the jury returned a verdict of guilty on both charges. Prior to the sentencing phase of the trial, the State introduced a certified copy of a judgment and commitment order reflecting that Appellant had pled guilty on January 20, 1993, to two counts of aggravated robbery, one committed on August 14, 1992, and the second committed on August 15, 1992. The State then argued that under Ark.Code. Ann. § 5-4-501(d) (Supp.2003), the Arkansas Habitual Offender's Statute, a person previously convicted of two or more violent felonies as enumerated in the statute, must be sentenced to life in prison upon his conviction for a third violent felony. Appellant argued that at the time he pled guilty to the two prior counts of aggravated robbery, the three-strikes law was not yet in effect and, thus, was being applied retroactively. The trial court disagreed and sentenced Appellant to life in prison on the aggravated robbery conviction and twelve months' imprisonment on the misdemeanor theft charge, to run concurrently with the life sentence. From that order, comes the instant appeal.

I. Sufficiency of the Evidence

Appellant's first argument on appeal is that the trial court erred in failing to grant his motion for a directed verdict raised at the conclusion of the State's case and renewed at the close of all the evidence. In his motion, Appellant argued that there was not substantial evidence to prove that he had knowledge that Jenkins was armed and intended to commit aggravated robbery. We disagree.

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Reed v. State, 109 S.W.3d 665 (2003); Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002). This court has repeatedly held that 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. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).

In the present case, we have the testimony of Dunmore directly linking Appellant to the aggravated robbery. Dunmore testified that on July 30, 2002, he was driving his mother's car when on the way to his girlfriend's house, he saw Appellant and Jenkins, who flagged him down. They asked Dunmore to give them a ride to a nearby apartment complex. Once there, Appellant got out of the vehicle and went into one of the apartments, while Jenkins remained in the car with Dunmore. Dunmore stated that during the drive to the apartment, he noticed that Jenkins had a sawed-off shotgun in his pants. When Appellant returned to the car, Dunmore asked him and Jenkins where they wanted to go because he needed to return the car to his mother. Jenkins responded that they needed some money, and Appellant stated, "Yeah, we need to do this." According to Dunmore, Appellant and Jenkins threatened him and told him to drive to Betty's Grocery. When they got to the store, Appellant told Dunmore to pop the hood of the car and act like he was messing with something under the hood. Appellant and Jenkins then went in to rob the store. After exiting the store, Dunmore noticed that Appellant was carrying the cash and that Jenkins had the shotgun in his hands. When they got back in the car, both Appellant and Jenkins told Dunmore to hurry and leave. After wrecking his car and fleeing, Dunmore got a ride to his cousin's house in Dumas. He then contacted his parents, who in turn, contacted authorities.

The jury was instructed that Dunmore by his own statements was an accomplice to the armed robbery; thus, his testimony standing alone is insufficient to convict Appellant. Pursuant to Ark.Code Ann. § 16-89-111 (Supp.2003), corroborative evidence must tend to connect the defendant with the commission of the crime. Corroboration is not sufficient, if it merely shows that the crime was committed and the circumstances of that crime. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001). This court has held that the "corroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it." Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); see also David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence, which is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David, 295 Ark. 131, 748 S.W.2d 117. However, corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983). Thus, this court must determine if there is substantial corroborating evidence supporting Appellant's conviction. We conclude there is.

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