Winkler v. State, CA CR 11–1223.

• Decision Date: 12 December 2012
• Docket Number: No. CA CR 11–1223.,CA CR 11–1223.
• Citation: 2012 Ark. App. 704,425 S.W.3d 808
• Parties: Jeffrey WINKLER, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

2012 Ark. App. 704

425 S.W.3d 808

Jeffrey WINKLER, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 11–1223.

Court of Appeals of Arkansas.

Dec. 12, 2012.

Robinson & Zakrzewski, P.A., by: Luke Zakrzewski, for appellant.

Dustin McDaniel, Att'y Gen., by: LeaAnn J. Irvin, Ass't Att'y Gen., for appellee.

DOUG MARTIN, Judge.

Appellant Jeffrey Winkler appeals from a Jefferson County jury's verdict finding him guilty of conspiracy to commit the following offenses: kidnapping, aggravated robbery, theft of property, and aggravated residential burglary. Winkler was sentenced to nine years' imprisonment. Winkler argues that the trial court erred in (1) denying his directed-verdict motion because there was no overt act, (2) refusing to require the State to select one offense as the object of the conspiracy, and (3) by imposing a sentence for a nonexistent offense. We find no error and affirm.

At trial, Sylvester L. Jones testified that on October 21, 2010, he was walking with a friend when Winkler approached them about doing yard work. Jones accepted the job offer, and Winkler gave Jones his telephone number and asked that Jones call him later that afternoon. Jones called and agreed to meet Winkler in the parking lot at Brookshire's grocery store. According to Jones, when he asked about the yard work, Winkler said, “I want you to do something else a little bit more ... a little killing.” Jones testified that Winkler first asked him to “rough up” a man named Stringfellow because the man was having an affair with Winkler's wife, but then Winkler brought up the subject of killing Mrs. Winkler. Jones testified that Winkler asked him to go to the Dollarway school where Mrs. Winkler worked and “just break her neck and drive off in her vehicle.” Jones refused, and Winkler instead suggested that the crime take place at the home he shared with Mrs. Winkler. Winkler told Jones that he could pay only $700 up front and would pay the rest when the job was complete. Jones asked to think about the matter. That evening, Jones spoke with his cousin, a police officer at the Altheimer Police Department, who arranged for J ones to meet with officers at the Pine Bluff Police Department on October 22, 2010.

Jones testified that Pine Bluff police officers gave him a recording device that resembled a key fob, and, at the officers request, Jones called Winkler to arrange another meeting at Brookshire's. During the recorded telephone conversation, Jones asked whether Winkler could pay him $100 to $200 immediately. Winkler said, “I ain't got anything with me.... I'm gonna get you your money if we go through with this[,] okay[?]”

Once in the parking lot at Brookshire's, Jones got into Winkler's vehicle. Although Jones thought the recording device was recording his conversation with Winkler, it was later determined that it had not. Jones testified that, during the drive to Winkler's ho me, Winkler asked whether he had a weapon, to which Jones responded that he did not. According to Jones, Winkler told him that he would provide one. Jones stated that Winkler asked him to slump down in the seat because he did not want his elderly neighbors to see Jones. When they arrived at Winkler's home, Winkler instructed Jones to break into the house through a side door using a brick, Winkler assured Jones that he would turn off the security alarm, Winkler took Jones into the home and showed Jones the bathroom where Mrs. Winkler dressed in the morning; and Winkler directedJones “to go ahead and just shoot her right there and make it look like a burglary and move fast.”

Jones further testified that Winkler led him through the house, advising him as to items he could steal. Winkler told Jones how to remove a mounted flat-screen television without damaging the wall. Winkler told Jones that he could steal the other televisions but added, jokingly, to leave one for him to watch. Winkler then pointed out a gun cabinet and a computer in the living room. Winkler led Jones to the master bedroom and told Jones that Mrs. Winkler kept all of her “good jewelry” under the mattress and advised Jones that, although Mrs. Winkier's wedding band was gold, the diamond was fake. Winkler showed Jones a drawer full of more jewelry, and Winkler separated the valuable jewelry from the “costume jewelry.” Winkler told Jones that he could take $300 to $400 from his wife's purse but asked that he not take the credit cards because they could be traced. According to Jones, Winkler told him to put the stolen items in Mrs. Winkler's truck and leave.

Jones testified that Winkler wanted “the job” done by Monday morning. When Winkler and Jones returned to the Brookshire's parking lot, the police arrested Winkler.

Detective Bill Wiegand with the Pine Bluff Police Department testified that, following Winkler's arrest, police conducted an inventory of his vehicle. Wiegand found a loaded .38–caliber pistol in the vehicle's console. Winkler was taken to the department, where he gave a taped statement after being advised of his Miranda rights. Winkler told police that he was in love with a woman from his workplace and that he wanted someone to “rough up” the woman's boyfriend, Mark Stringfellow, who was “giving him some trouble.” According to Winkler, “the wife deal” was an afterthought. Winkler told police that he had asked Jones to “kind of break in and kind of scare my wife, I guess.” Wiegand asked whether Winkler had implied to Jones that he wanted his wife killed, and Winkler said, “[Jones] might have took it that way, yeah.” Winkler explained, “I guess I was looking for a way out of my marriage.” Winkler said that he had hoped that scaring his wife would cause her to move on in order to “free him up” to be with his coworker.

In the statement, Winkler told police that, although he told Jones that he did not want to know the details, he thought Jones might tie up his wife or disable the telephones. Winkler also stated that he and Jones discussed where Jones would park and how he would come through the woods, climb the fence, and throw a brick through the back door. Winkler stated that he did not plan to leave the back door unlocked because he thought he needed a forced entry. Winkler stated that he had told Jones there was to be no shooting in the house because the neighbors would hear. Wiegand asked why any shooting would occur if Jones was only burglarizing the house, and Winkler said, “Well, I was intending if he scared her—is what I'm thinking.” Winkler told police that he went to work at 6:00 a.m. and that his wife went to work around 6:15 a.m. so Jones had “a short window” of time to carry out their plan. Winkler stated that he had three televisions that he knew would be “attractive” to Jones. He stated that he had told Jones that his wife's wedding band was gold but the diamond was fake. Winkler told police that he and Jones had discussed Winkier's paying Jones $700 to “[b]reak in and steal some stuff, scare her, and leave.”

Wiegand resumed his testimony, stating that the approximate value of a fifty-two-inch Sony flat-screen television was $1,500; the value of a forty-inch Samsung flat-screen television was $1,000; and the value of a thirty-two-inch Visio flat-screen television was about $400. Wiegand stated that he obtained those figures from Amazon, which gives a high and low range of value, and that his figures were the mid-range value. Wiegand testified that he could not determine the value of the jewelry. Wiegand testified that Winkler had told him that he kept a .38–caliber revolver in a nightstand and that a .38–caliber revolver was recovered in the console of Winkler's vehicle, along with a concealed-handgun permit.

Winkler moved for a directed verdict, arguing that he and J ones were at the planning stage of the conspiracy and that no overt act had been committed. 1 he trial court denied the motion, and Winkler presented witnesses for the defense's case-in-chief, including his wife, Pam Winkler, who testified regarding Stringfellow's harassment of Winkler. Winkler's renewed motion for directed verdict was denied, and the matter was submitted to the jury for deliberation.

The verdict form indicates that the jury found that Winkler conspired to commit kidnapping, aggravated robbery, theft of property valued at $2,500 or more, and aggravated residential burglary. Winkler presented numerous witnesses during the penalty phase, including his wife, daughter, friends, and coworkers, all of whom made glowing remarks about Winkler's character. The jury then sentenced Winkler to nine years imprisonment for one count of conspiracy, a Class A felony.

1. Sufficiency of the Evidence

Winkler argues that the trial court erred in denying his motion for directed verdict. A motion for directed verdict is a challenge to the sufficiency of the evidence. Jones v. State, 45 Ark.App. 28, 871 S.W.2d 403 (1994). On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State and will affirm if the finding of guilt is supported by substantial evidence. Id. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without requiring resort to speculation or conjecture. Id.

A person conspires to commit an offense if, with the purpose of promoting or facilitating the commission of any criminal offense, (1) the person agrees with another person or other persons that one or more of the persons will engage in conduct that constitutes that offense or the person will aid in the planning or commission of that criminal offense, and (2) the person or another person with whom the person conspires does any overt act in pursuance of the conspiracy. Ark.Code Ann. § 5–3–401(1), (2) (Repl.2006). It is well settled that a conspiracy may be proved by circumstances and the inferences to be drawn from the course of conduct of the alleged conspirators. Jones, sup...