Summary
In Davis, the defendant argued on appeal that his convictions on charges of felon in possession of a firearm and commission of a felony with a firearm violated the double jeopardy clause of the United States Constitution. This court interpreted the supreme court's decision in Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005), to mean that when the commission-of-a-felony-with-a-firearm charge is used to enhance a defendant's sentence, the double jeopardy clause is not offended. 93 Ark. App. at 447, 220 S.W.3d at 250.
Summary of this case from Watkins v. StateOpinion
No. CR 84-155
Opinion delivered February 11, 1985
1. CRIMINAL LAW — AGGRAVATED ROBBERY AND THEFT OF PROPERTY — SUFFICIENCY OF EVIDENCE. — Where the manager of a store testified that appellant pointed a gun at his head during the course of a robbery and that over $12,000 was missing after appellant and his accomplices left the store, this testimony, if believed, is clearly sufficient to establish the elements of the crimes of aggravated robbery and theft of property. [Ark. Stat. Ann. 41-2102, 41-2103 and 41-2203 (Repl. 1977).] 2. APPEAL ERROR — STANDARD OF REVIEW. — The appellate court reviews the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support the conviction. 3. EVIDENCE — SUBSTANTIAL EVIDENCE — WHAT CONSTITUTES. — Substantial evidence must do more than create a suspicion; it must be of sufficient force to compel a conclusion with reasonable certainty. 4. WITNESSES — CREDIBILITY TO BE RESOLVED BY JURY. — The accuracy of the store manager's identification of appellant as one of the robbers and the alleged weaknesses of that identification were matters of creditibility to be resolved by the jury. 5. APPEAL ERROR — CREDIBILITY OF WITNESSES — APPELLATE COURT BOUND BY JURY'S JUDGMENT. — The appellate court is bound by the jury's judgment as to the credibility of witnesses. 6. EVIDENCE — TESTIMONY OF ONE WITNESS SUFFICIENT TO SUSTAIN CONVICTION. — The uncorroborated testimony of one state's witness is sufficient to sustain a conviction. 7. EVIDENCE — ADMISSIBILITY. — Where the declarant testified at trial by way of videotaped deposition and was subjected at the time to cross-examination, another witness's testimony that the declarant identified a person in a line-up is admissible under Unif. R. Evid. 801(d)(1)(iii).
Appeal from Jefferson Circuit Court; Randall L. Williams, Judge; affirmed.
Holmes Trafford, for appellant.
Steve Clark, Att'y Gen., by: Joyce Ray burn Greene, Asst. Att'y Gen., for appellee.
Appellant was convicted of aggravated robbery and theft of property and was sentenced, as an habitual criminal, to a total of 35 years in prison. On appeal, he argues that the court erred in failing to direct a verdict in his favor and in allowing a police officer to testify to a witness's lineup identification of appellant. We think the trial court was correct in both instances and affirm.
Appellant contends that the trial court should have directed a verdict because the evidence was insufficient to sustain a conviction. Appellant's trial was held over six years after the robbery took place. The only evidence implicating appellant in the crimes was the testimony of the manager of the store that was robbed. The manager testified that appellant pointed a gun at his head during the course of the robbery and that over $12,000 was missing after appellant and his accomplices left the store. The manager was unsure whether appellant was then wearing a beard, but he testified that he remembered certain other features of appellant's face. The manager was positive in his identification of appellant as one of the robbers. The manager and a police officer testified that the manager had identified appellant in a lineup held just over a year after the robbery.
Appellant testified that he was out of the state on the day of the robbery. A convicted accomplice who denied his own participation testified that he was not yet acquainted with appellant on the day of the robbery and could not account for appellant's whereabouts on that day.
The manager's testimony, if believed, is clearly sufficient to establish the elements of the crimes of aggravated robbery and theft of property. Ark. Stat. Ann. 41-2102; 41-2103 and 41-2203 (Repl. 1977).
On appeal we review the evidence in a light most favorable to the appellee and affirm if there is substantial — evidence to support the conviction. Substantial evidence must do more than create a suspicion; it must be of sufficient force to compel a conclusion with reasonable certainty. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The accuracy of the manager's identification of appellant and the alleged weaknesses of that identification were matters of credibility to be resolved by the jury. The jury in this case had the choice of believing the manager or believing appellant. They obviously believed the manager and we are bound by the jury's judgment as to the credibility of witnesses. Ellis v. State, 279 Ark. 430, 652 S.W.2d 35 (1983). We have held before that the uncorroborated testimony of one state's witness is sufficient to sustain a conviction. Meeks v. State, 161 Ark. 489, 256 S.W. 863 (1923). See also Clark v. State, 246 Ark. 1151, 442 S.W.2d 225 (1969); Canada v. State, 169 Ark. 221, 275 S.W. 327 (1925); Melton v. State, 165 Ark. 448, 264 S.W. 965 (1924); and Boykin v. State, 270 Ark. 284, 603 S.W.2d 911 (Ark.App. 1980). We find substantial evidence to support the convictions.
Appellant's second point concerns a police officer's testimony that the manager identified appellant at a lineup. The manager testified by way of a videotaped deposition because he is now in the armed forces and stationed at a distant post. He was cross examined by appellant's attorney. There is no allegation that the lineup procedure was defective in any way.
Appellant recognizes that we have held proof of this type to be admissible and not hearsay under Unif. R. Evid. 801(d)(1)(iii). Hilton v. State, 278 Ark. 259, 644 S.W.2d 932 (1983); Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21 (1982); Martin v. State, 272 Ark. 376, 614 S.W.2d 512 (1981). He urges us to overrule these cases.
Appellant has presented neither citation nor convincing argument which suggests to us that these cases, and indeed Unif. R. Evid. 801(d)(1)(iii) itself, should be overruled. We decline to do so. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).
Affirmed.