Dameon DAVIS, Appellant v. STATE of Arkansas, Appellee
No. CR-13-307
Court of Appeals of Arkansas
Nov. 6, 2013
2013 Ark. App. 658
Further, assuming arguendo, that I would find the injury occurred during the scope of employment, there is no substantial evidence to support a finding that appellee Michael Lemna was entitled to immunity from tort. This cloak of immunity is to be given to a co-employee under limited fact scenarios when that co-employee is charged with, and fulfilling, the employer‘s duty to provide a safe place to work. Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723; King v. Cardin, 229 Ark. 929, 319 S.W.2d 214 (1959). Something more than just being present on the “job” is required to place Lemna in the shoes of his employer for purposes of tort immunity. Lemna was not “charged with” transporting Curtis around the golf course.
WOOD, J., joins in this dissent.
Charles E. Ellis, Deputy Public Defender, for appellant.
RHONDA K. WOOD, Judge.
A jury found Dameon Davis guilty on two aggravated-robbery counts. In addition to the jury‘s conviction, the circuit court had denied Davis‘s pretrial motion to suppress evidence from a traffic stop and, after the jury had convicted him, revoked his probation for an earlier aggravated-assault conviction. Davis appeals all three decisions. We affirm in all respects.
I. Facts
This case involves two gas-station robberies that happened on October 18, 2011, in Blytheville. The first robbery happened at the Cherry Tree gas station at around 10:00 p.m. and the second robbery occurred at the Dodges Store, approximately an hour later. Both clerks described the assailant as wearing black clothes with a white rag held over his face. The first clerk described the assailant‘s clothing as a black hoodie, black pants, and black shoes. In both instances, the assailant pointed a small revolver at the clerks and demanded money. The first clerk gave him $200 in various denominations, but mostly one and five-dollar bills. Some of the money was paper-clipped together. The second clerk surrendered $300 to the man.
Sergeant Kyle Lively responded to both armed robberies. He arrived at the Cherry Tree at 10:30 p.m. but left shortly after that to respond to the Dodges Store robbery. On the way, he saw a vehicle that triggered his interest. First, Sgt. Lively had previously arrested the vehicle‘s driver, Quintrell Richardson, for carrying a firearm. Second, he remembered seeing the vehicle a few days earlier in close
Three people were in the car: Richardson, the driver; Dameon Davis (appellant), the front-seat passenger; and a back-seat passenger. Various one and five-dollar bills were scattered on the floorboard, and all three men had at least $100 on their person. Some of the money was still paper-clipped together. Davis told Sgt. Lively that his name was “Solomon Slaughter,” and Sgt. Lively arrested him for giving a false name. Later, the police calculated that the money on the floorboard, plus the money on the three men, totaled $563. The police also gathered clothing from the men, including a black hoodie, black shoes, a black hat, and a white T-shirt.
After hearing the above testimony, a jury convicted Davis on two aggravated-robbery counts. The circuit court also revoked Davis‘s probation for an earlier aggravated-assault charge. Davis received 10 years’ imprisonment for the robberies and six years’ imprisonment for the revocation, all set to run concurrently.
II. The Verdict
Davis argues that the jury heard insufficient evidence that he was a principal or accomplice to aggravated robbery. We disagree because the police found him in a car that was driving away from the crime scene; the car contained roughly the same amount of money that had been stolen from the two stores; and clothing that the clerks saw the robber wearing was found in the car. Consequently, we affirm the jury‘s verdict.
A motion for a directed verdict is a challenge to the sufficiency of the evidence. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003). When a defendant makes a challenge to the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and only consider evidence supporting the verdict. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion beyond suspicion or conjecture. Id.
Circumstantial evidence may constitute substantial evidence to support a conviction. Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (2007). The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. This is a jury question, and we will not disturb the jury‘s determination unless the jury resorted to speculation and conjecture in reaching its verdict. Id.
Here, Davis, the appellant, was convicted as an accomplice to aggravated robbery. “A person commits robbery if, with the purpose of committing a felony or misdemeanor theft . . . the person employs or threatens to immediately employ physical force on another person.”
- Solicits, advises, encourages, or coerces the other person to commit it; or
- Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or
- Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.
Substantial evidence supports Davis‘s aggravated-robbery conviction. When the officer stopped the car, it was moving away from the Dodges Store‘s direction. Officers found Davis in the car with roughly the same amount of money that had been stolen from the two gas stations. The money was mostly in small bills and was paper-clipped together, which is how the clerk described the money stolen from the Cherry Tree gas station. Sergeant James Harris testified that $139.2 of that money was found on Davis‘s person. Davis also provided a false name to the police, and using a false name after committing a crime tends to establish guilt. See Austin v. State, 26 Ark. App. 70, 760 S.W.2d 76 (1988).
Other facts support the jury‘s verdict that Davis was an accomplice. Once the car had been pulled over, police discovered that all three men had money in their pockets. A jury could believe, without resorting to speculation, that the men shared the crime‘s proceeds and had jointly participated in the robbery. Last, one of the passengers was wearing clothing—a black hat, black pants, and black shoes—that matched the two witnesses’ descriptions and surveillance-video footage of the robber; and police also confiscated a black hoodie from the car that strongly resembled the one the robber had worn in Dodges Store.
All told, this evidence is substantial and supports the jury‘s verdict that Dameon Davis committed, or was an accomplice to, aggravated robbery.
III. Motion to Suppress
We addressed Davis‘s sufficiency argument first for double jeopardy purposes and now turn to his suppression argument. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Davis maintains that the police lacked reasonable suspicion to pull Richardson‘s car over and that the circuit court erred in denying his motion to suppress evidence from the stop. In fact, for the reasons explained below, the police did have reasonable suspicion. We therefore affirm the circuit court‘s denial of his motion to suppress.
In reviewing a circuit court‘s denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences
“A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit . . . a felony.”
When determining whether reasonable suspicion exists, an officer may consider, inter alia, the following factors:
- Any knowledge the officer may have of the suspect‘s background or character;
- The time of the day or night the suspect is observed;
- The particular streets and areas involved;
- Any information received from third persons, whether they are known or unknown;
- Whether the suspect is consorting with others whose conduct is reasonably suspect;
- The suspect‘s proximity to known criminal conduct; and
- The incidence of crime in the immediate neighborhood.
In this case, Sergeant Lively, had reasonable suspicion to stop the vehicle. Sgt. Lively knew that two armed robberies had recently taken place because he went to the Cherry Tree and was in the process of responding to the Dodges Store robbery. On the way there, at around 11:20 PM, he saw Quintrell Richardson‘s car a half-mile away from the Dodges Store, which had just been robbed. Immediately, Sgt. Lively became suspicious because he had arrested Richardson in the past for having a gun. Further, Sgt. Lively had seen Richardson‘s car a few days earlier at another robbery and could identify the car by its color and unique rims.
These facts are specific, particularized, and articulable and gave Sgt. Lively a good reason to believe that Richardson, the car‘s driver, was involved in an armed robbery. They also implicate the relevant factors listed above, including Sgt. Lively‘s own knowledge about Richardson‘s past, the time of day (late), and the car‘s proximity to the recently robbed Dodges Store. Our supreme court, in Tillman v. State, 271 Ark. 552, 609 S.W.2d 340 (1980), found that these near-identical facts justified a traffic stop based on probable cause. In Tillman, the police officer‘s knowledge of the defendant‘s past criminal conduct, a
IV. Probation Revocation
Davis also argues that the circuit court should not have revoked his probation for an earlier aggravated-assault conviction. He says that the circuit court did not specify which probation condition he had violated. The record reflects the opposite: the court revoked his probation for committing the criminal offense of aggravated robbery. The State‘s burden in a revocation proceeding is proving by a preponderance of the evidence that the probationer had violated one probation condition.3 See Bradley v. State, 347 Ark. 518, 65 S.W.3d 874 (2002). Because this is less than is required to convict for a criminal offense, and because we have already found that substantial evidence supports Davis‘s aggravated-robbery convictions, we affirm the revocation.
Affirmed.
GLADWIN, C.J., and PITTMAN, J., agree.