ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE DIVISION I

ODELL HAMPTON,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-573

NOVEMBER 28, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT,

NO. CR00-740,

HON. MARION HUMPHREY,

JUDGE

AFFIRMED

Odell Hampton appeals from his convictions for aggravated robbery and attempted capital murder. Following a bench trial, Hampton was sentenced to twenty-two years in the Arkansas Department of Correction. For reversal, he contends that the court erred in failing to grant his motion for directed verdict because there was insufficient evidence to connect him to the crimes and that the identification by the victim was unreliable. We find no error and affirm.

As his first argument, Hampton contends that the eyewitness testimony by Eddie Gilmore, the victim, who identified Hampton as the man who robbed and shot at him, was not credible. The State contends that Hampton's challenge to the sufficiency of the evidence is no more than a challenge to the weight and credibility of the evidence and should be rejected. We agree.

A motion for directed verdict is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999). When the sufficiency of the evidence is challenged on appeal from a criminal conviction, we will affirm if the finding of guilt is supported by substantial evidence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the appellee, considering only evidence that tends to support the verdict. Id. On October 28, 1998, at approximately midnight, Eddie Gilmore answered a knock at his door. Gilmore testified that he saw an unidentified man lying on the porch, holding his neck, and pleading for help. When Gilmore opened the glass storm door, the man jumped up, and another man, whom Gilmore later identified as Hampton, came around the corner of the house. Both men, armed with handguns, entered Gilmore's home, and demanded money. Gilmore testified that while the other man ran through the house looking for money, Hampton grabbed him by the collar, held a gun to his head, and forced him to his knees. Gilmore stated that he could not see the other man running through the house after the gun was stuck against his head, but that he was looking Hampton in the face for fifteen to twenty minutes during the incident. In fact, Gilmore testified that Hampton was so close that he was spitting in Gilmore's face when he yelled.

After the unidentified robber found Gilmore's pants, he took a hundred and twenty-five dollars out of his billfold. Then the men yelled at Gilmore to get down in the corner andto keep his head down. Gilmore stated that when he was putting his head down, Hampton fired the gun, and he fell forward. After the gunshot, the two men took off running out the door. The bullet only scraped Gilmore's ear, so, although bleeding on the side of his face, Gilmore got up and ran to the door. He saw one of the robbers fall in front of the house, then get up and jump into a car. The other robber, Hampton, also made it to the car. Gilmore then went back into the house and telephoned the police.

In order to establish that Hampton had committed aggravated robbery and attempted capital murder, the State had the burden of identifying him as one of the persons who committed these crimes. The State established Hampton's involvement by the eyewitness testimony of Gilmore, and the testimony of Gilmore's identification through a photographic lineup. The testimony of one eyewitness is sufficient to sustain a conviction. Pryor v. State, 71 Ark. App. 87, 27 S.W.3d 440 (2000).

Hampton challenges both the in-court and out-of-court identifications made by Gilmore. He argues that inconsistencies in Gilmore's descriptions of the attacker are reasons why the identifications were not sufficiently reliable. Hampton suggests that there are several inconsistencies in Gilmore's testimony: 1) Gilmore's description of his attacker to the police on the night of the alleged attack does not fit Hampton's appearance; 2) Gilmore's description of the amount of time he had an opportunity to view his attackers varied between what he initially told the police and his testimony at trial, which was almost two years later; 3) no evidence was presented that Hampton had gold on his teeth, a major factor of Gilmore's identification.

We view Hampton's challenge to the sufficiency of the evidence as nothing more than a challenge to the weight and credibility of the evidence. See Phillips v. State, 344 Ark. 453, 455, 40 S.W.3d 778, 779 (2001). Normally, the reliability of eyewitness identification of a defendant is a question for the jury or trier of fact. Id. at 456, 40 S.W.3d at 780 (citing Synoground v. State, 260 Ark. 756, 543 S.W.2d 935 (1976)). If it is not argued that the procedures leading to the identification were constitutionally infirm, it is up to the trier of fact to determine whether the eyewitness identification is reliable. Id. at 458, 40 S.W.3d at 781. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Cobb v. State, 340 Ark. 240, 12 S.W.3d 1995 (2000). Hampton has not asserted any constitutional infirmity. He merely argues the reliability of the identification. The factors that should be considered in reliability of the eyewitness identifications are:

(1) the prior opportunity of the witness to observe the alleged act;

(2) the accuracy of the prior description of the accused;

(3) any identification of another person prior to the pretrial identification procedure;

(4) the level of certainty demonstrated at the confrontation;

(5) the failure of the witness to identify the defendant on a prior occasion; and

(6) the lapse of time between the alleged act and the pretrial identification procedure.

Kimble v. State, 33 Ark. 155, 158, 959 S.W.2d 43, 44 (1998).