Cite as 2015 Ark. App. 35
ARKANSAS COURT OF APPEALS DIVISION I No. CR-14-420
Opinion Delivered January 28, 2015
A.D. APPEAL FROM THE BENTON APPELLANT COUNTY CIRCUIT COURT [NO. J-2013-624-D] V. HONORABLE THOMAS E. SMITH, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Fifteen-year-old A.D. appeals the Benton County Circuit Court’s order that found
him guilty as an accomplice to theft of property and adjudicated him delinquent. On
appeal, he argues that the evidence was insufficient to support the court’s ruling. We
affirm.
In an amended delinquency petition filed 22 January 2014, A.D. was charged as an
accomplice to theft of property, a Class A misdemeanor. The State alleged that A.D.
aided two other juveniles in shoplifting from Gordman’s. The court held a hearing in
Feburary 2014, and Jill Timbes, a Gordman’s employee, testified that she was in charge of
“audit safety” and monitored security cameras, associates, and people entering the
building. She explained that on September 7, 2013, she observed A.D. and another
juvenile, C.B., enter the store, and that A.D. “looked up for a camera” when they entered
the store. She agreed that it was protocol for her to observe anyone that either looked up
1 Cite as 2015 Ark. App. 35
at the cameras or proceeded to the fragrance and jewelry areas, which are the store’s
highest theft areas. She observed the two young men wander around the store and stated
that A.D. seemed nervous, describing him as “rocking back and forth, kind of wringing
his hands, and just looking down the aisles. He was looking out more than he was looking
at merchandise.” The two young men then met up with a female, A.M., who was
carrying “a lot” of store merchandise and a large black purse. Around this time, Timbes
was also notified that store employees had found several empty hangers in the shoe
department.
Timbes observed the three juveniles walking through the store and eventually
stopping in the shoe department, where C.B. and A.M. proceeded to squat down to the
floor for several minutes with A.D. standing “right over them.” Timbes described A.D. as
looking “back and forth” and “nervous.” The prosecutor then played a DVD of the store
surveillance footage from that day, which was a stipulated exhibit. Timbes explained that
she confronted A.M. and C.B. as they left the store and took them to her office, then
went back to confront A.D., who was walking out of the store. Timbes found several
items in A.M.’s purse, including a leather jacket, shirts, socks, and a speaker. C.B. also had
a speaker down his pants. A.D. did not have any merchandise in his possession.
Officer Christopher Douglas with the Rogers Police Department testified that he
responded to a shoplifting report on September 7 and that he observed the three juveniles
in Timbes’s office. Douglas stated that the juveniles were cooperative and that A.D.
“admitted to shoplifting, as well as the others. I can’t give you specifics of what it was. But
2 Cite as 2015 Ark. App. 35
it made me believe he was just as culpable as the other two that were there.” He
explained that the juveniles were arrested but released to their parents’ custody.
At the close of the State’s case, A.D. moved to dismiss,1 arguing that he was “just
there” and that “mere presence is not an accomplice to the theft.” The court denied the
motion and stated that
if you’re going to stand right next to your friends stealing stuff, and you block the aisle, you are—by your actions—helping the theft occur. And then when you walk around with your friends like you’re just some good old shoppers, just out there to spend the money, acting like normal kids that are going to do some shopping, you’re, after-the-fact, helping complete the crime. .... And when you stand there watching them steal, looking around, making sure nobody else is watching them steal, you’re a part of the crime. You’re a lookout.
C.B. then testified and admitted that he shoplifted from Gordman’s. He stated that
he and A.D. had ridden in A.M.’s car to the store, but he denied A.D.’s involvement,
stating that “when we were literally done, he [A.D.] goes, ‘Come on man, I’m leaving.
There’s people coming, and I don’t want to be a part of this.’” C.B. testified that A.D.
was angry and that he did not help them shoplift.
A.D. renewed his motion to dismiss, which was again denied. The court stated, “I
didn’t see [A.D.] getting mad, and telling them it was stupid, and trying to leave. I didn’t
see any of that in the video.” Addressing A.D., the court found that “once you have
knowledge that the stolen items are on the possession of your friends, and walking around
the store, acting like normal teenagers, that nothing is going on; you’ve now become part
A.D.’s motion for a directed verdict is treated as a motion for dismissal because the case 1
was tried to the court. 3 Cite as 2015 Ark. App. 35
of the scheme, the plan.” The court found A.D. guilty, sentenced him to three months’
probation, and assessed various costs and fees. A.D. now appeals to this court.
While a delinquency adjudication is not a criminal conviction, it is based upon an
allegation by the State that the juvenile has committed a certain crime. J.F. v. State, 2009
Ark. App. 499. Our standard of review is the same as it would be in a criminal case, that
is, whether the adjudication is supported by substantial evidence. E.S. v. State, 2013 Ark.
App. 378. Substantial evidence is evidence, direct or circumstantial, that is of sufficient
force and character to compel a conclusion one way or the other, without speculation or
conjecture. A.F. v. State, 2010 Ark. App. 523. In considering the evidence presented
below, we will not weigh the evidence or assess the credibility of witnesses, as those are
questions for the finder of fact. Id.
A person is an accomplice of another person in the commission of an offense if,
with the purpose of promoting or facilitating its commission, the person (1) solicits,
advises, encourages, or coerces the other person to commit the offense, (2) aids, agrees to
aid, or attempts to aid the other person in planning or committing the offense, or (3)
having a legal duty to prevent the commission of the offense, fails to make a proper effort
to prevent the commission of the offense. T.D. v. State, 2012 Ark. App. 140. When two
or more persons assist one another in the commission of a crime, each is an accomplice
and criminally liable for the conduct of both; one cannot disclaim accomplice liability
simply because he did not personally take part in every act that made up the crime as a
whole. Id. Mere presence at the scene of a crime is not enough to make a person an
accomplice. Id. Except in extraordinary cases, even presence at the scene of the crime
4 Cite as 2015 Ark. App. 35
combined with actual knowledge that a crime is being committed is not sufficient to make
a person an accomplice in the absence of any purpose to further the accomplishment of
the offense. Id. Relevant factors in determining the connection of an accomplice to a
crime are the presence of the accused in the proximity of a crime, the opportunity to
commit the crime, and an association with a person involved in a manner suggestive of
joint participation. Id.
The issue presented here is whether there was substantial evidence presented at trial
to prove that A.D.
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Cite as 2015 Ark. App. 35
ARKANSAS COURT OF APPEALS DIVISION I No. CR-14-420
Opinion Delivered January 28, 2015
A.D. APPEAL FROM THE BENTON APPELLANT COUNTY CIRCUIT COURT [NO. J-2013-624-D] V. HONORABLE THOMAS E. SMITH, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Fifteen-year-old A.D. appeals the Benton County Circuit Court’s order that found
him guilty as an accomplice to theft of property and adjudicated him delinquent. On
appeal, he argues that the evidence was insufficient to support the court’s ruling. We
affirm.
In an amended delinquency petition filed 22 January 2014, A.D. was charged as an
accomplice to theft of property, a Class A misdemeanor. The State alleged that A.D.
aided two other juveniles in shoplifting from Gordman’s. The court held a hearing in
Feburary 2014, and Jill Timbes, a Gordman’s employee, testified that she was in charge of
“audit safety” and monitored security cameras, associates, and people entering the
building. She explained that on September 7, 2013, she observed A.D. and another
juvenile, C.B., enter the store, and that A.D. “looked up for a camera” when they entered
the store. She agreed that it was protocol for her to observe anyone that either looked up
1 Cite as 2015 Ark. App. 35
at the cameras or proceeded to the fragrance and jewelry areas, which are the store’s
highest theft areas. She observed the two young men wander around the store and stated
that A.D. seemed nervous, describing him as “rocking back and forth, kind of wringing
his hands, and just looking down the aisles. He was looking out more than he was looking
at merchandise.” The two young men then met up with a female, A.M., who was
carrying “a lot” of store merchandise and a large black purse. Around this time, Timbes
was also notified that store employees had found several empty hangers in the shoe
department.
Timbes observed the three juveniles walking through the store and eventually
stopping in the shoe department, where C.B. and A.M. proceeded to squat down to the
floor for several minutes with A.D. standing “right over them.” Timbes described A.D. as
looking “back and forth” and “nervous.” The prosecutor then played a DVD of the store
surveillance footage from that day, which was a stipulated exhibit. Timbes explained that
she confronted A.M. and C.B. as they left the store and took them to her office, then
went back to confront A.D., who was walking out of the store. Timbes found several
items in A.M.’s purse, including a leather jacket, shirts, socks, and a speaker. C.B. also had
a speaker down his pants. A.D. did not have any merchandise in his possession.
Officer Christopher Douglas with the Rogers Police Department testified that he
responded to a shoplifting report on September 7 and that he observed the three juveniles
in Timbes’s office. Douglas stated that the juveniles were cooperative and that A.D.
“admitted to shoplifting, as well as the others. I can’t give you specifics of what it was. But
2 Cite as 2015 Ark. App. 35
it made me believe he was just as culpable as the other two that were there.” He
explained that the juveniles were arrested but released to their parents’ custody.
At the close of the State’s case, A.D. moved to dismiss,1 arguing that he was “just
there” and that “mere presence is not an accomplice to the theft.” The court denied the
motion and stated that
if you’re going to stand right next to your friends stealing stuff, and you block the aisle, you are—by your actions—helping the theft occur. And then when you walk around with your friends like you’re just some good old shoppers, just out there to spend the money, acting like normal kids that are going to do some shopping, you’re, after-the-fact, helping complete the crime. .... And when you stand there watching them steal, looking around, making sure nobody else is watching them steal, you’re a part of the crime. You’re a lookout.
C.B. then testified and admitted that he shoplifted from Gordman’s. He stated that
he and A.D. had ridden in A.M.’s car to the store, but he denied A.D.’s involvement,
stating that “when we were literally done, he [A.D.] goes, ‘Come on man, I’m leaving.
There’s people coming, and I don’t want to be a part of this.’” C.B. testified that A.D.
was angry and that he did not help them shoplift.
A.D. renewed his motion to dismiss, which was again denied. The court stated, “I
didn’t see [A.D.] getting mad, and telling them it was stupid, and trying to leave. I didn’t
see any of that in the video.” Addressing A.D., the court found that “once you have
knowledge that the stolen items are on the possession of your friends, and walking around
the store, acting like normal teenagers, that nothing is going on; you’ve now become part
A.D.’s motion for a directed verdict is treated as a motion for dismissal because the case 1
was tried to the court. 3 Cite as 2015 Ark. App. 35
of the scheme, the plan.” The court found A.D. guilty, sentenced him to three months’
probation, and assessed various costs and fees. A.D. now appeals to this court.
While a delinquency adjudication is not a criminal conviction, it is based upon an
allegation by the State that the juvenile has committed a certain crime. J.F. v. State, 2009
Ark. App. 499. Our standard of review is the same as it would be in a criminal case, that
is, whether the adjudication is supported by substantial evidence. E.S. v. State, 2013 Ark.
App. 378. Substantial evidence is evidence, direct or circumstantial, that is of sufficient
force and character to compel a conclusion one way or the other, without speculation or
conjecture. A.F. v. State, 2010 Ark. App. 523. In considering the evidence presented
below, we will not weigh the evidence or assess the credibility of witnesses, as those are
questions for the finder of fact. Id.
A person is an accomplice of another person in the commission of an offense if,
with the purpose of promoting or facilitating its commission, the person (1) solicits,
advises, encourages, or coerces the other person to commit the offense, (2) aids, agrees to
aid, or attempts to aid the other person in planning or committing the offense, or (3)
having a legal duty to prevent the commission of the offense, fails to make a proper effort
to prevent the commission of the offense. T.D. v. State, 2012 Ark. App. 140. When two
or more persons assist one another in the commission of a crime, each is an accomplice
and criminally liable for the conduct of both; one cannot disclaim accomplice liability
simply because he did not personally take part in every act that made up the crime as a
whole. Id. Mere presence at the scene of a crime is not enough to make a person an
accomplice. Id. Except in extraordinary cases, even presence at the scene of the crime
4 Cite as 2015 Ark. App. 35
combined with actual knowledge that a crime is being committed is not sufficient to make
a person an accomplice in the absence of any purpose to further the accomplishment of
the offense. Id. Relevant factors in determining the connection of an accomplice to a
crime are the presence of the accused in the proximity of a crime, the opportunity to
commit the crime, and an association with a person involved in a manner suggestive of
joint participation. Id.
The issue presented here is whether there was substantial evidence presented at trial
to prove that A.D. aided, attempted to aid, or agreed to aid C.B. and A.M. in shoplifting.
A.D. argues that he was merely present while the other two juveniles shoplifted and that
the evidence did not show that he aided or encouraged the commission of the crime. The
State counters that the testimony and video footage showed, and the circuit court
specifically found, that A.D. aided the other juveniles by acting as a lookout. A.D.
disagrees and argues that this case is similar to F.C. v. State, 2014 Ark. App. 196, in which
this court reversed a juvenile’s delinquency adjudication. F.C. was accused of being an
accomplice in the theft of a cell phone, and in reversing, we explained:
J.J. was identified on the video as the person walking by the phone and bending down. However, F.C.’s accomplice liability is based entirely on testimony that he came into the gym with J.J. and the third juvenile, stood near the curtains separating the gyms, and looked through the curtains. We hold that this evidence is not of sufficient force and character to compel a conclusion one way or the other, without speculation or conjecture. We therefore reverse F.C.’s delinquency adjudication.
Id. at 6.
F.C. is distinguishable from this case. In F.C., the circuit court made no specific
finding that F.C. acted as a lookout, and the witnesses only testified as to their
5 Cite as 2015 Ark. App. 35
observations of the surveillance tape, but here, the court was able to view the surveillance
first-hand and make a determination that A.D. acted as a lookout. Having reviewed the
testimony and the video footage in this case, we find substantial evidence to support the
court’s finding that A.D. acted as a lookout and was part of the overall plan to shoplift.
To hold otherwise would require us to re-weigh the evidence or re-assess the witnesses’
credibility, which we will not do. See A.F. v. State, supra.
Affirmed.
ABRAMSON and GLOVER, JJ., agree.
Flinn Law Firm, P.A., by: Jennifer Williams Flinn, for appellant.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.