Wright v. State
| Decision Date | 19 May 2022 |
| Docket Number | CR-20-403 |
| Citation | 2022 Ark. 103,644 S.W.3d 236 |
| Parties | Tracy Duane WRIGHT, Appellant v. STATE of Arkansas, Appellee |
| Court | Arkansas Supreme Court |
Digby Law Firm, by: Bobby R. Digby II, and Daniel S. Marks, for appellant.
Leslie Rutledge, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., for appellee.
Appellant, Tracy Duane Wright, appeals his convictions of aggravated robbery and theft of property, and his sentencing as a habitual offender. For reversal, Wright argues that (1) there was insufficient evidence to convict him of either charged count, and (2) the circuit court erred by concluding that his earlier Kansas conviction was comparable for sentencing purposes to an Arkansas serious felony involving violence. Because Wright was sentenced to life in prison, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a) (2020). We affirm.
On September 19, 2019, Wright was charged by amended criminal information with one count of aggravated robbery in violation of Arkansas Code Annotated section 5-12-103 (Repl. 2013) and one count of theft of property in violation of Arkansas Code Annotated section 5-36-103(a) and (b)(3)(A) (Supp. 2017). Citing Wright's two prior residential burglary convictions in Kansas, the State charged that he should be sentenced as a habitual offender pursuant to Arkansas Code Annotated section 5-4-501(d) (Supp. 2017).
A jury trial was held on November 5–6, 2019. Evidence introduced at trial established that Melissa Morrison was working as a cashier at the Dollar General store on Eighth Street in Rogers on November 11, 2018. Morrison testified that a white man wearing a dirty blond wig with twigs in it entered the store and approached the cashier's counter with candy to purchase. Before she could complete the transaction, the man handed her a note and told her to read it. The note instructed Morrison not to touch anything and to open the cash-register drawer and put all the money into a bag that he had. The note indicated that the man had a gun in his waistband, that he would use it, and that the money in the register was not worth her life. Morrison testified that the man lifted his shirt to reveal a handgun in his waistband with the grip exposed and the barrel pointing down into his pants. Morrison said that the gun did not look "real." She balled up the note, threw it back at the man, and ran into the office and closed the door. When Morrison saw on the closed-circuit television that the robber had left the store, she called 911 and reported the incident.
Corporal Jeffrey Lane of the Rogers Police Department was dispatched to the Dollar General immediately after the robbery. Lane testified that he collected the note and a bag that the man had dropped in front of the store. Pamela McDonald, the Dollar General store manager, gave the police surveillance videos of the robbery. The videos showed the robber enter the store at approximately 9:24 p.m., interact with Morrison, and exit the store going south. The robber was wearing a hat, sunglasses, and gloves.
The day after the robbery, Rogers police officer Joshua Martin responded to a call at Rogers Heritage High School for a report of a firearm found on school property. It turned out to be a broken toy gun that was found near Holly Street, about one hundred yards from the Dollar General. Officer Jeffrey Ochoa of the Rogers Police Department, who was the resource officer at the high school, provided the school's November 11, 2018 surveillance videos to police. The videos showed a person on a bicycle heading south at about 9:25 p.m. and then crossing a field diagonally in the direction of the Guest Inn hotel.
Sunil Panchal testified that he was the manager of the Guest Inn. He provided the hotel's surveillance video that showed a person riding a bicycle toward room 124, which had been rented by Wright. Wright had produced identification when he checked in. Panchal recalled that Wright was tall and had a small bicycle.
Corporal Gerardo Villar of the Rogers Police Department testified that he was the lead investigator for the robbery. He said that he came to believe that the toy gun found at the high school may have been relevant to the robbery because it was found near the Dollar General. In reviewing the school surveillance video, he saw a person riding a bicycle in a southwest direction at a high rate of speed toward the Guest Inn. At that hotel, Villar showed the owner a photo from the video, and he was directed to room 124. No one was in the room, but it had not yet been cleaned and police found the broken tip of a toy gun in the trashcan. The tip of the toy gun found in the hotel room matched the toy gun found at the high school. Police also found a casino card with Wright's name on it, the paper insert from a men's ball cap, and a tag from a men's sweatshirt. Villar testified that he obtained Wright's hotel check-in information that included photo identification of Wright. As part of his investigation, Villar accessed a reporting system that documented a transaction Wright made at Big Brother's Pawn Shop on Eighth Street. Villar observed that, in video obtained from the pawn shop, Wright pawned a bicycle while he was wearing gloves that resembled the ones worn by the robber. Don Gross, who was a Big Brother's employee, confirmed that Wright was the person who pawned the bicycle on November 12, 2018.
Chelsea Phipps and her husband, Shawn Phipps, worked at the CarTime auto dealership on Eighth Street in Rogers. Chelsea testified that she was working there on November 13, 2018, when Wright and a female entered and asked to test drive the cheapest vehicle. Chelsea made a copy of Wright's driver's license and allowed him to test drive a Dodge Dakota pickup truck. When Wright did not return for more than an hour, Shawn reported the vehicle stolen. Thereafter, Wright called and gave Chelsea his female companion's phone number and said that they were going to the bank to get the money and would return in about fifteen minutes. At that point, there had been no sales discussion, and no paperwork had been prepared. Wright did not return. The next day, officer Robert Grigg of the Rogers Police Department spotted the truck on the road sometime after 1:00 a.m. and tried to stop it. Grigg testified that the driver fled, and initially evaded him. The truck was found abandoned a short time later. Officer Christopher Herron of the Rogers Police Department testified that the engine was still warm, and he discovered Wright and a female companion hiding behind air conditioning units at a nearby church. After the truck was recovered, Villar searched the interior and discovered a hat and sunglasses that resembled those worn by the robber at the Dollar General.
The State introduced a recording of a telephone call that Wright made to his mother while he was detained at the Benton County jail. Wright's mother, Denzel Wright, confirmed that she was the person on the line with Wright. Denzel asked Wright what he had done, and he said, "I tried to rob a Dollar General." Denzel asked, "With a gun?" and Wright replied, "toy gun."
Outside the jury's presence, the circuit court considered whether Wright had committed two prior felonies involving violence that would qualify him for sentencing as a habitual offender. The State introduced evidence showing that Wright had been convicted of burglaries in Kansas in 1989 and 1992. Wright testified that his 1989 conviction involved him stealing a piece of equipment from his employer's barn. Despite Wright's testimony, the circuit court concluded that Wright's two Kansas convictions were comparable to an Arkansas residential-burglary conviction and therefore qualified him for sentencing as a habitual offender. The circuit court denied Wright's motions for a directed verdict and submitted the case to the jury, which convicted him of aggravated robbery of the Dollar General store and theft of property for taking the truck from CarTime. He was automatically sentenced as a violent habitual offender to life in prison on the aggravated-robbery charge. The jury sentenced him to seven and one-half years’ imprisonment and a $5,000 fine for theft of property. Wright filed a timely appeal.
In his first point on appeal, Wright asserts that substantial evidence does not support his convictions for either aggravated robbery or theft of property. In reviewing a sufficiency challenge, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. McCray v. State , 2020 Ark. 172, 598 S.W.3d 509. We will affirm a judgment of conviction if substantial evidence exists to support it. Mabry v. State , 2020 Ark. 72, 594 S.W.3d 39. Substantial evidence is evidence that 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. Id. Direct evidence is evidence that proves a fact without resort to inference when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. Chatmon v. State , 2015 Ark. 28, 467 S.W.3d 731. Circumstantial evidence is evidence of circumstances from which a fact may be inferred. Id. Circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Armstrong v. State , 2020 Ark. 309, 607 S.W.3d 491. Whether the evidence excludes every other hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an issue for the jury, not the court; the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Howard v. State , 2016 Ark. 434, 506 S.W.3d 843.
We first consider the sufficiency of the evidence supporting Wright's aggravated-robbery conviction....
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