Stewart v. State

• Decision Date: 30 September 1999
• Docket Number: 99-728
• Parties: Asa D. STEWART v. STATE of Arkansas CR 99-728 ___ S.W.2d ___ Opinion delivered
• Court: Arkansas Supreme Court

Asa D. STEWART v STATE of Arkansas

CR 99-728 ___ S.W.2d ___

Opinion delivered September 30, 1999

Supreme Court of Arkansas

Appeal from Mississippi Circuit Court; John Fogleman, Judge; affirmed. Arkansas Court of Appeals reversed in part; affirmed in part.

1. Appeal & error -- petition for review -- case treated as if originally filed in supreme court. -- When the supreme court grants a petition to review a case decided by the court of appeals, it reviews it as if it had been filed originally in the supreme court.

2. Criminal law -- information -- when State may amend. -- The State is entitled to amend an information at any time prior to the case being submitted to the jury so long as the amendment does not change the nature or degree of the offense charged or create unfair surprise; the mere fact that an amendment authorizes a more severe penalty does not change the nature or degree of the crime.

3. Criminal law -- information -- trial court did not err in allowing State to amend to include aggravated-robbery charge. -- Where the language of the original information contemplated the elements for aggravated robbery and, more importantly, where defense counsel acknowledged his awareness that the State would be amending the information, the supreme court could not say that appellant was prejudiced by surprise; accordingly, the supreme court held that the trial court did not err by permitting the State to amend the information to include the aggravated-robbery charge.

4. Motions -- directed verdict -- challenge to sufficiency of evidence. -- On appeal, the supreme court treats a motion for a directed verdict as a challenge to the sufficiency of the evidence; when it reviews a challenge to the sufficiency of the evidence, it will affirm the conviction if there is any substantial evidence to support it, when viewed in the light most favorable to the State.

5. Evidence -- substantial evidence -- defined. -- 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 mere speculation or conjecture; the evidence may be either direct or circumstantial.

6. Evidence -- circumstantial evidence -- requirements. -- Circumstantial evidence can provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion.

7. Criminal law -- accomplice liability -- presence of accused in mannersuggestive of joint participation. -- The presence of an accused in the proximity of a crime in a manner suggestive of joint participation is a relevant factor in determining an accomplice's connection to a crime.

8. Criminal law -- accomplice liability -- factors. -- Relevant factors in determining the connection of an accomplice to a crime include (1) the presence of the accused in proximity of a crime, (2) the opportunity to commit the crime, and (3) an association with a person involved in the crime in a manner suggestive of joint participation.

9. Criminal law -- flight following commission of offense -- factor in determining probable guilt. -- Flight following the commission of an offense is a factor that may be considered with other evidence in determining probable guilt.

10. Witnesses -- testimony -- trier of fact free to believe all or part. -- The trier of fact is free to believe all or part of a witness's testimony.

11. Witnesses -- credibility -- issue for jury. -- The credibility of witnesses is an issue for the jury and not for the appellate court; the jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's.

12. Evidence -- proof of guilt -- defendant's improbable explanation of suspicious circumstances admissible. -- A defendant's improbable explanation of suspicious circumstances may be admissible as proof of guilt.

13. Criminal law -- aggravated robbery -- sufficient evidence supported appellant's conviction. -- Given appellant's knowledge that his associates contemplated a robbery, his admission that he had arrived at a rest stop armed and had loitered for about thirty minutes, his acknowledgment that he was in the bathroom at the time the victim was shot, and testimony that appellant covered his head, fled with the group, and was later seen with a weapon, the jury had substantial evidence to conclude that appellant participated in a botched robbery attempt; the supreme court concluded that, viewed in the light most favorable to the State, there was sufficient evidence to support appellant's aggravated-robbery conviction.

14. Evidence -- photographs -- admission criteria. -- The supreme court will not reverse a trial court for admitting photographs absent an abuse of discretion; although the supreme court is highly deferential to a trial court's discretion, it has rejected a carte blanche approach to the admission of photographs; in making the admission determination, the supreme court requires the trial court to consider, first, whether the relevant evidence creates a danger of unfair prejudice, and, second, whether the danger of unfair prejudice substantially outweighs its probative value.

15. Evidence -- photographs -- when admissible. -- Even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand the testimony; other acceptable purposes are to show the condition of the victim's body, the probable type or location of the injuries, and the position in which the body was discovered; when a photograph serves no valid purpose and could only be used to inflame the jury's passions, it should be excluded.

16. Evidence -- photographs -- trial court did not abuse discretion in admitting crime-scene photograph. -- Where the trial court determined that a photograph of the victim lying in a pool of blood near a restroom was probative because it showed the victim's location in relation to the restroom doors and to pay telephones, and given the acceptable purposes for admitting photographs, the supreme court could not say that the trial court abused its discretion by admitting the crime-scene photograph.

17. Evidence -- photographs -- trial court did not abuse its discretion in admitting autopsy photographs. -- Where the trial court found that the probative value of autopsy photographs relating to the nature of the victim's wounds was not substantially outweighed by any danger of unfair prejudice, and in light of the acceptable purposes for admitting photographs, the supreme court concluded that the trial court did not abuse its discretion by admitting the autopsy photographs.

John H. Bradley, for appellant.

Mark Pryor, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen.,for appellee.

W.H. "Dub" Arnold, Chief Justice.

Appellant, Asa D. Stewart, was found guilty of aggravated robbery and first-degree murder in connection with the death of Russell Hinkle at a rest stop outside Blytheville, Arkansas. Stewart was sentenced to consecutive terms of twenty-five years' imprisonment in the Arkansas Department of Correction for the murder conviction and forty years' imprisonment for the robbery offense. In the first appeal of this matter to the Arkansas Court of Appeals, Stewart challenged (1) the trial court's decision permitting the State to amend the felony information two days prior to trial to add the offense of aggravated robbery, (2) the sufficiency of the evidence supporting his aggravated-robbery conviction, and (3) the trial court's admission into evidence of three photographs. The appellate court reversed and dismissed appellant's aggravated-robbery conviction, affirmed the trial court's admission of the photographs, and affirmed appellant's first-degree murder conviction. See Stewart v. State, 67 Ark. App. 1, 992 S.W.2d 147 (1999). In light of its decision reversing and dismissing the robbery conviction, the court declined to address Stewart's objection to the amended information.

Subsequently, we granted review of the Court of Appeals' decision. Our jurisdiction is authorized pursuant to Ark. Sup. Ct. Rule 2-4 (1999). When we grant a petition to review a case decided by the Court of Appeals, we review it as if it was filed originally in this court. See Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997) (citing Allen v. State, 326 Ark. 541, 932 S.W.2d 764 (1996)). In the instant appeal, Stewart again challenges the amendment of the felony information shortly before trial, the sufficiency of the evidence supporting the aggravated-robbery conviction, and the trial court's admission of three photographs. We find no merit in appellant's arguments, and we affirm the trial court. Further, we reverse in part and affirm in part the Court of Appeals.

I. Amendment of felony information

The appellants' first point on appeal contends that the trial court erred by permitting the State to file an amended information alleging aggravated robbery, pursuant to Ark. Code Ann. section 5-12-103, as a separate count from the capital-felony-murder count in the original, December 20, 1996, felony information. Specifically, Stewart argues that he was prejudiced by the amended information because he was taken by "surprise" immediately prior to trial. However, during the pretrial conference, defense counsel acknowledged:

Also, the State has filed an amended information yesterday. I was told about it last Friday. I really don't have any objection to the amendment on the capital murder. [The prosecutor] has made me aware that he was going to do that sometime ago, so I'm not really surprised, but I am objecting to the addition of the charge which my client was not charged with, which is aggravated robbery. I can't say I...