Lowe v. State

182 S.W.3d 132, 357 Ark. 501, 2004 Ark. LEXIS 344
CourtSupreme Court of Arkansas
DecidedMay 27, 2004
DocketCR 03-1173
StatusPublished
Cited by1 cases

This text of 182 S.W.3d 132 (Lowe v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lowe v. State, 182 S.W.3d 132, 357 Ark. 501, 2004 Ark. LEXIS 344 (Ark. 2004).

Opinion

Betty C. Dickey, Chief Justice.

Carl Lowe appeals his stice. robbery, theft of property, kidnapping, and felon in possession of a firearm in connection with the robbery of the JES Liquor Store in Dumas. Lowe was sentenced as a habitual offender and received sentences oflife imprisonment on the aggravated robbery charge, thirty years for theft of property, forty years for kidnapping, and forty years for felon in possession of a firearm, all to run consecutively. Because this is an appeal in which a sentence oflife imprisonment has been imposed, jurisdiction is proper pursuant to Ark. Sup. Ct. R. l-2(a)(2). On appeal, Lowe challenges the sufficiency of the evidence. He contends that the trial court erred in denying his motions for a directed verdict. We find no error and affirm.

Facts

On the morning of January 7, 2003, Cindy Ashcraft, the manager ofJES Liquor, heard the back door of her store open and noticed two men entering the establishment. The first man was wearing a long black coat and a camouflage face mask. She did not recognize the other man, who was not wearing a mask. Both men were wearing white cotton gloves. The masked individual pointed a revolver at Ms. Ashcraft’s head and demanded all of her money. Ms. Ashcraft testified that based upon the masked man’s mannerisms, height, and voice, the first name that popped into her head was Carl Lowe, a regular customer of hers. After giving the men the money from her cash register, Ms. Ashcraft was taken into the store room, and her hands were bound with duct tape behind her back. The two men took $1,737.00 in cash and rolled coins, a bottle of Crown Royal whiskey, a bottle of Hennessy cognac, and a few packs of Newport cigarettes and left the store.

About noon that day, the Dumas Police Department obtained a search warrant for the apartment where Lowe stayed. The police recovered two black leather-like coats similar to the ones worn by the robbers, one of which was found in Lowe’s bedroom. In addition, the officers found a camouflage face mask, $1,160.00 cash, and $76.00 in rolled coins in the appellant’s bedroom closet. The officers discovered an additional $501.00 cash in a plastic bag underneath Lowe’s bed.

Later that- afternoon, the officers secured a second search warrant, and recovered a loaded revolver in the kitchen cabinet of the appellant’s apartment. The police found white cloth gloves in both the kitchen and the appellant’s bedroom, and an empty bottle of Hennessy cognac and a full bottle of Crown Royal whiskey in the kitchen. The tax number from the bottle of Hennessy was the next number in sequence from the numbers on the bottles that remained at Ms. Ashcraft’s store. The tax number on the bottle of Crown Royal matched the numbers on the counterpart bottles that remained at the store. Finally, the officers discovered a pack of Newport cigarettes on Lowe’s person and another pack of New-ports in the pocket of the second black coat from the living room. The tax stamp numbers from the packs of Newport cigarettes matched those of the other packs of Newports from JES Liquor.

At trial, Lowe moved for directed verdicts on all the charges against him, which were denied. A Desha county jury convicted Lowe of aggravated robbery, theft of property, kidnapping, and felon in possession of a firearm. Lowe was sentenced as a habitual offender and received a sentence of life imprisonment on the aggravated robbery charge, thirty years for theft of property, forty years for kidnapping, and forty years for felon in possession of a firearm. All of the sentences were to run consecutively. Lowe appeals his conviction on the basis that there was insufficient evidence.

Standard of Review

Motions for directed verdict are challenges to the sufficiency of the evidence. Benson v. State, No. CR03-1095, slip op. (April 22, 2004); Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000). When reviewing the denial of a directed-verdict motion, the appellate court will look at the evidence in the light most favorable to the State, considering only the evidence that supports the verdict and will affirm if there is substantial evidence to support the jury’s conclusion. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). Substantial evidence is that which is forceful enough to compel reasonable minds to reach a conclusion one way or the other and permits the trier of fact to reach a conclusion without having to resort to speculation or conjecture. Green v. State, 355 Ark. 1, 977 S.W.2d 192 (1998).

Circumstantial versus Direct Evidence

On appeal, Lowe claims the trial court erred in denying his motion for directed verdict because the evidence used to identify him as the robber was insufficient. Lowe argues the State introduced only inconclusive or circumstantial evidence of identification through Ms. Ashcraft’s testimony and through items found at his residence. We disagree.

While the items recovered from Lowe’s apartment linking him to the crime are circumstantial evidence, we have held that guilt can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003); Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000); Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). Where circumstantial evidence alone is relied upon, it must exclude every other reasonable hypothesis, other than that of guilt of the accused, to be substantial. Gregory, supra. However, in the case at bar, Lowe was not convicted upon purely circumstantial evidence.

Direct evidence is evidence that proves a fact without resort to inference, when for example, it is proved by witnesses who testify as to what they saw, heard, or experienced. Gamble, supra. Furthermore, direct evidence is evidence which, if believed, resolves the issue. Id. This court has held that it is within the province of the jury to accept or reject testimony as it sees fit. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). The testimony provided by Ms. Ashcraft as to what she saw, heard, and experienced during the course of the robbery is direct evidence.

Sufficiency of the Evidence

The State contends that the trial court did not err by denying the motion for directed verdict as there was sufficient evidence that Lowe committed the crimes with which he was charged. We agree.

At trial, Ms. Ashcraft testified that Lowe was a regular customer of hers; when she saw the masked gunman enter the store the first name that came to mind was Carl Lowe. Ms. Ashcraft based her conclusions on the gunman’s height, voice, and mannerisms, which matched those of Lowe. Furthermore, the items of clothing matching those worn by the gunman were later found at Lowe’s apartment, and Ms. Ashcraft testified that the revolver found in the apartment looked like the one that was pointed at her head.

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Related

Wells v. State
217 S.W.3d 145 (Court of Appeals of Arkansas, 2005)

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Bluebook (online)
182 S.W.3d 132, 357 Ark. 501, 2004 Ark. LEXIS 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-state-ark-2004.