D.F. v. State

2015 Ark. App. 656, 476 S.W.3d 189, 2015 Ark. App. LEXIS 743
CourtCourt of Appeals of Arkansas
DecidedNovember 12, 2015
DocketNo. CR-15-78
StatusPublished
Cited by1 cases

This text of 2015 Ark. App. 656 (D.F. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
D.F. v. State, 2015 Ark. App. 656, 476 S.W.3d 189, 2015 Ark. App. LEXIS 743 (Ark. Ct. App. 2015).

Opinions

WAYMOND M. BROWN, Judge

| Appellant appeals from the circuit court’s adjudication of his delinquency on charges of theft by receiving, a Class C felony.1 Appellant’s sole point on appeal is that the circuit court erred by failing to grant his motion for directed verdict2 when the sole evidence came from the testimony of a codefendant who had pled guilty3 to charges prior to appellant’s trial.4 We reverse.

On August 23, 2014, appellant was a passenger in a stolen 2011 Kia Optima when he was apprehended by Officer Daniel Bradway, employed by Arkansas State University, 12on its campus. Appellant and the other passengers were taken into custody by the Jonesboro Police Department.

On September 14, 2014, appellee filed a petition alleging that appellant .was a delinquent juvenile by virtue of committing the offense of theft by receiving,-a Class C felony. A trial on the petition was held on October 29, 2014, and an order of probation was entered on the same date adjudicating appellant delinquent. Appellant was sentenced to probation; to pay court costs, fees, and restitution; to perform eighty hours of public service work; a curfew of 8:00 pm; and ninety days in the Craighead County juvenile detention center, all ninety of which were deferred. This timely appeal followed.

Appellant’s sole argument is that his motion for directed verdict should have been granted on the basis that the only evidence against him was a codefendant’s testimony, which he argues was insufficient to support a finding of delinquency. While proceedings involving juveniles, are considered to be civil cases, our Juvenile Code expressly provides that the Arkansas Rules of Criminal Procedure apply to delinquency proceedings.5

Rule 33.1 of the Arkansas Rules of Criminal Procedure provides» in relevant part that in a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence and shall state the specific grounds therefor.6 Because this, was a bench; trial, appellant’s motion for directed verdict was in reality a motion to dismiss, and |awe treat it as such.7 -A motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury trial in that it is a challenge to the sufficiency of the evidence.8

The standard of review for sufficiency of the evidence in a juvenile proceeding is the same as in a criminal case.9 In L.C. v. State, this court stated the following:

The test for determining sufficient proof is whether there is substantial evidence, direct or circumstantial, to support the verdict. On appeal, we review the evil dénce in the light most favorable'to the State and sustain the conviction if there is any substantial evidence to support it. Evidence 4s substantial if it' is forceful enough to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. In determining whether there is substantial evidence, we consider only that evidence tending to support the verdict. We do not weigh the evidence’presented at trial, as that is a matter for the fact-finder. Where, as here, the trial is befóré the bench, the trial'judge sits as fact-finder.10

Appellant’s sole point on appeal is that the trial court erred in failing to grant his motion for a directed verdict when the sole evidence came from the testimony of a codefendant. Under Arkansas law concerning accomplice testimony, a person cannot be convicted based on the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.”11 Corroboration is not sufficient if it “merely shows that the offense was committed and the | ^circumstances of the offense.”12 Corroborating evidence must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony.13 The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime.14

The test is whether, if the testimony of the accomplice was completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission.15 The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an .accomplice’s testimony.16 The presence of an accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation are relevant facts in determining the connection of an accomplice with the crime.17

| ^Appellant was charged with theft by receiving, a Class C felony. Arkansas Code Annotated section 5-36-106 states that a person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person knowing that the property was stolen or having good reason to believe the property was stolen.18 “Receiving, as used in this section, means acquiring possession, control, or title or tending on the security of the property.”19 The unexplained possession or control by the person of recently stolen property gives rise to a presumption that a person knows or believes that the property was stolen.20

Appellant argues that the only evidence corroborating S.B.’s testimony was that of S.B.’s sister, who testified that she knew appellant and the other passengers in the stolen car and that all of them, appellant included, had seen her vehicle before. Appellant points out that he testified that he had never met the codefen-dant’s sister, whom he was told the car belonged to, and had never seen the sister’s car before.

If we were to remove the codefendant’s testimony that appellant and the other co-defendants were with him when he stole the car21 and when he threw away the victim’s golf clubs, the remaining evidence is as follows:

1. Officer Bradway’s testimony that appellant, along with his codefendants, was a passenger in the stolen vehicle that he stopped on August 23, 2014, and that a set of golf clubs was missing from the vehicle;
|n2. Officer Nicholas Dean’s testimony that the vehicle had been stolen the night before according to the victim;
3. The victim’s testimony that there were some golf clubs worth $1,593.94 in his car when it was stolen, that he did not give appellant or any of his codefendants permission to drive his car, and his assertion that he did not know appellant or his codefendants;
4.

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Cite This Page — Counsel Stack

Bluebook (online)
2015 Ark. App. 656, 476 S.W.3d 189, 2015 Ark. App. LEXIS 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/df-v-state-arkctapp-2015.