ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISIONS III & IV

REGINALD J. DUNN and

BRIAN HALL

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 99-863

FEBRUARY 14, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 97-1716, CR 98-3459]

HON. JOHN B. PLEGGE,

CIRCUIT JUDGE

CONCURRING ON DENIAL OF REHEARING; DISSENTING ON DENIAL OF REHEARING

ANDREE LAYTON ROAF, Judge, concurring in part; dissenting in part. In an unpublished opinion delivered on November 1, 2000, Dunn v. State, 2000 WL 1635605 (Ark. Ct. App. 2000), we reversed Reginald Dunn's conviction for possession of marijuana with intent to deliver, and affirmed the conviction of his accomplice, Brian Hall, on the same charge. Both the State and Hall have petitioned for rehearing, each asserting that this court misapplied the law regarding corroboration of accomplice testimony. The State argues that we should have affirmed Dunn's conviction because there was independent testimony that Dunn had actual physical possession of the drugs. Hall argues that the corroborating evidence was not unambiguous evidence of guilt and therefore was not substantial enough to provide corroboration. I would grant the State's petition for rehearing of our reversal of Dunn's conviction, and I concur in the denial of Brian Hall's petition because although I believe that the conviction should be affirmed, we should do so for a different reason than is stated in the opinion.

Regarding the denial of Hall's petition for rehearing, I do not agree that the affirmance of his conviction for possession of marijuana with intent to deliver should rest upon construing his retreat to his vehicle as evidence of flight. Both the prosecutor at trial and the State in its appellee brief have misrepresented the evidence presented on this point. At trial, the officers testified that Hall merely got in his truck, which was parked about two feet from the accomplice's vehicle from which the marijuana was being transferred, and appeared to be trying to "hide something." However, in response to Hall's motion for directed verdict, the prosecutor argued that Hall attempted to drive away and the police had to stop him from doing so. On appeal, the State again contends that Hall attempted to flee in his truck and that this is evidence of guilt that tends to connect him to the crime. Given the fact that the arresting officers drove up to the two vehicles in such a manner as to strike and break the leg of their cooperating accomplice, Mr. Calloway, Hall's decision to retreat to his truck seems to have been a prudent one. By the same token, I cannot agree that Dunn's reaction, merely getting into a "crouch" when the officers raced up should be the dispositive fact in reversing his conviction. I believe that there is sufficient evidence, even though slim, to affirm both Hall's and Dunn's convictions and I dissent from the denial of the State's petition for rehearing of the reversal of Reginald Dunn's conviction.

The general rule regarding the sufficiency of corroboration recently has been set outas follows: Standing alone, the corroboration for a felony conviction based upon accomplice testimony must be sufficient to establish the commission of the offense and to connect the defendant with it. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Notably, circumstantial evidence qualifies as corroborating evidence, but it must be substantial, although not so substantial in and of itself to sustain a conviction. Henderson v. State, 337 Ark. 518, 521, 990 S.W.2d 530, 532 (1999). Furthermore, presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation, and possession of instruments used in the commission of the offense are relevant factors in determining the sufficiency of corroboration by circumstantial evidence. Dyas v. State, 260 Ark. 303, 314, 539 S.W.2d 251, 252 (1976). The Arkansas Criminal Code defines an accomplice in the commission of an offense as one who, with the purpose of promoting or facilitating the offense:

(1) Solicits, advises, encourages, or coerces the other person to commit it; or

(2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

(3) Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so.

Ark. Code Ann. § 5-2-403(a) (Repl. 1997).

The crime in question, possession with intent to deliver, took place over several hours, beginning as soon as the accomplices acquired the drugs in Dallas, and ending onlyafter the police seized the perpetrators and the contraband. Dunn acquired accomplice liability as soon as he solicited Callaway to carry the drugs and Hall as soon as he agreed to transport Dunn to make the buy, however, for the purposes of this court's review, we should only focus on evidence of Ark. Code Ann. § 5-2-403(a)(2), the extent to which Hall and Dunn aided, agreed to aid, or attempted to aid Callaway in committing the offense. Evidence tending to show that Hall and Dunn did so, would corroborate Callaway's testimony.

If we exclude Callaway's testimony, we still have the testimony of Detective Welborne who stated that he observed Callaway call Dunn to inform him that he had a flat tire, and a short time later, he observed Hall and Dunn show up in Hall's truck. He also observed Hall and Dunn working in concert to change the tire, which was unambiguously aiding Callaway.

Furthermore, when the actions by Hall and Dunn are judged in accordance with the factors listed in Dyas, they weigh in favor of finding sufficient corroboration. 1) presence of an accused in proximity to the crime: Hall parked his truck two feet from Callaway's vehicle and was jacking up Callaway's car when the police arrived and Dunn was actually holding the drugs; 2) opportunity: Hall and Dunn responded to Callaway's request that they assist him with the drugs; 3) association with persons involved in a manner suggesting joint participation: Hall and Dunn were acting as Callaway's pit crew: Hall was fixing the tire while Dunn was unloading the dope, presumably to reach the spare tire; the testimony by the police suggests that Callaway was just standing around; 4) possession of instruments usedin the commission of the offense: certainly the State could have done more to prove Hall and Dunn's complicity, however, Hall was jacking the car up and Dunn was loading the two garbage bags with over 90 pounds of marijuana worth $100,000 into Hall's vehicle. Accordingly, we had Hall and Dunn taking charge of the matter, and Hall certainly possessed the truck that Dunn put the drugs into.

In reversing Dunn's conviction, the court of appeals relied on Green v. State, 265 Ark. 179, 182, 577 S.W.2d 586, 588 (1979), where the supreme court stated that:

The question of evidence necessary to corroborate an accomplice's testimony to the extent of allowing a case to be submitted to a jury is necessarily governed by the facts and circumstances of each case as it is presented. Evidence which is merely suspicious in nature is insufficient, or if it is as consistent with innocence as guilt, it is not enough to submit the question of the defendant's guilt to the jury.

(Emphasis added.) If we view the evidence in the light most favorable to the State, as this court is required to do on appeal, I simply cannot agree that the corroborating evidence with respect to Dunn is as consistent with innocence as with guilt; to do so, one would have to believe that it was equally likely for two innocent acquaintances to get out late at night and change a tire for another able-bodied man, who thought so much of them that he told the police that they were his accomplices in a major drug trafficking operation, as it was for two drug traffickers to assist their accomplice in bringing $100,000 worth of drugs up from Texas and in coming forward to protect this valuable commodity when he encountered difficulties. Furthermore, the reversal in Green, a decision authored by Justice Purtle, was had because the State failed to present non-accomplice testimony that even identified theappellant, who remained in a car while his confederates robbed a fast-food restaurant, as one of the persons associated with the robbery.

I find the instant case more analogous to Ashley v. State, 22 Ark. App. 73, 732 S.W.2d 872 (1987), where sufficient corroboration was found for an accomplice to an armed robbery where there was evidence that the appellant and the gunman were acquainted; they entered the liquor store together on foot; the appellant surveyed the back of the store and when asked if everything was okay, replied that it was, which apparently served as a signal to the gunman who then attempted to rob the store; and when confronted with the owner brandishing a shotgun, instead of dropping to the floor as an innocent bystander would do, appellant put himself directly in the line of fire by fleeing into the woods with the gunman. The court of appeals held that Ashley's argument that the evidence was insufficient was based strictly on his interpretation of the facts, however, reconciling conflicts in testimony and weighing the evidence are matters that belong to the jury.

This majority is viewing the facts of this case too narrowly. This court should look beyond the simple acts of holding a garbage bag filled with hard packages and jacking up a car and retreating to one's own vehicle when the police arrived, and instead view the facts and circumstances in this case as more consistent with rendering aid to an accomplice who was transporting $100,000 worth of drugs. I would affirm both convictions.

Stroud,C.J., joins.