ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION I

                                                                                    CACR03-174

                                                                                                                         October 22, 2003

RECO BLAKELY                                                      AN APPEAL FROM PULASKI

              APPELLANT                                                COUNTY CIRCUIT COURT

                                                                                    [CR02-517]

V.                                                                                HON. MARION HUMPHREY, JUDGE

STATE OF ARKANSAS 

              APPELLEE                                                   AFFIRMED

Wendell L. Griffen, Judge

           Reco Blakely appeals from his convictions for two counts of aggravated robbery and one count of theft of property, arguing that the State’s evidence was insufficient to support his convictions. We disagree and affirm.

           This case arises in connection with two robberies that took place within a few hours’ time on the evening of January 5, 2002. The first robbery took place at the Arby’s Restaurant on Cantrell Road in Little Rock, at approximately 7:00 p.m.

           According to the testimony adduced at trial, Quentin Smith spent most of the afternoon of January 5 with appellant and had seen appellant with a gun earlier that day. Appellant dropped Smith off at the Arby’s on Cantrell. Phyllis Thomas, the manager of the Arby’s, knew Smith because he was an acquaintance of her daughter. A few minutes after appellant dropped Smith off, a black male entered the restaurant. Both Smith and Thomas identified the male as appellant. Thomas saw appellant’s “whole face,” and observed him pulling a ski mask over his face. Smith stated that appellant had a bag in his hand, had a mask on his head that was not pulled down over his face, and carried “something like a machine gun.” Thomas and Smith fled across the street to a Harvest Foods store, and requested the store manager to call the police.

           The robber entered the working area of the store and pulled a gun on Isaac Macklin, who was working the drive-through window. With the gun close to Macklin’s face, the robber ordered Macklin to open the safe. When Macklin informed the robber that only the manager could open the safe, the robber pulled the trigger back and cocked the gun. When Macklin repeated that he could not open the safe, the robber then unsuccessfully attempted to open some of the registers and fled without actually taking any money or property.

           Smith did not report the incident to the police immediately after the robbery. Instead, Smith called appellant from a gas station down the street from Arby’s, and appellant returned to pick up Smith. Smith then accompanied appellant to pick up another male, whom Smith was unable to identify. According to Smith, appellant parked the car near a Sonic on Geyer Springs Road, and appellant and the other male exited the vehicle. Smith testified that appellant was carrying a bag and a gun, the “same equipment” that Smith had seen him with earlier in the day. Smith testified that he “kind of knew what was going down.”  

           At approximately 8:00 p.m. that same evening, two masked males entered the working area of the Sonic on Geyer Springs Road and ordered the employees to lie on the floor. One man ordered Peronda McDaniel, the manager, to open the safe. McDaniel testified that the man “had the gun up to me and made me get up” and open the safe. She testified that she was scared for her life. She stated that the man took money out of the cash register, took coin changers out of the safe, and took bills out of the drop box. He also emptied some plastic ice-cream-cup lids near the safe that contained change. Jaymie Hartwig, a latent fingerprint examiner, testified that a fingerprint she retrieved from one of the ice-cream-cup lids matched appellant’s right index finger. McDaniel testified that the coin changers that had been admitted into evidence appeared to be the same ones that the robber took out of the safe. She stated that she saw the robber’s eyes and that appellant’s eyes looked like the eyes she saw.

           Issachar Jarrett, an employee of Sonic, gave the robbers the money that he had on his person. He testified that the first man who came in had a gray gun with two handles on it and was wearing a “do rag.” He also stated that one man had a ski mask over his face. Jarrett stated that the man with the ski mask ordered McDaniel to give him the money.

           According to Smith, after appellant and the other male returned from Sonic, the three men drove to Butler Apartments. Appellant then emptied his bag, which contained coins, silver coin changers, and some one, five, and ten dollar bills. After the money was counted appellant threw the coin changers into some bushes near Gum Springs Road. The next day after the robberies, Smith reported the incidents to the police. Smith later led police to Gum Springs Road area, and the coin changers were recovered in that area.

           The night of the robbery, January 5, Detective Russell King presented Thomas with a photographic line-up that did not contain a photograph of appellant. King stated that Thomas was unable to identify the robber from that initial lineup, and that he signed Thomas’s name on the form, to indicate that she could not identify the suspect. On January 8, three days after the robbery, Thomas was presented with another photographic line-up, and identified appellant as the robber. Thomas testified that the line-up that was placed into evidence looked like the photographs that she saw on January 8, and that she signed the form indicating that she selected photograph number 5, which was a photograph of appellant.

            Appellant was charged with one count of aggravated robbery for the Arby’s theft, and with one count of aggravated robbery and one count of theft of property for the Sonic robbery. A jury found him guilty on all three counts, and this appeal followed.

           Appellant moved below for a directed verdict, challenging the evidence that identified him as the robber. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998). On appeal, we review the evidence in the light most favorable to the appellee and affirm if substantial evidence supports the jury verdict; only evidence supporting the guilty verdict need be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other with reasonable certainty beyond mere suspicion or conjecture. Id.

           We affirm because there was substantial evidence to support that appellant was one of the robbers. First, with regard to the Arby’s robbery, Thomas saw appellant’s “whole face,” and observed him put a ski mask over his face, as did Smith. Further, Thomas picked appellant out of a line-up three days after the robbery. While appellant raised the issue of the officer signing Thomas’s name to the prior line-up, Thomas testified unequivocally that she signed the form for the January 8 line-up, and that the photographs admitted from the January 8 line-up looked like the photographs that she saw on January 8. The weight to be given to the evidence was an issue for the jury to decide. See Howard v. State, 348 Ark. 471, 79 S.W.2d 273, (2002). Certainly, the testimony of these two witnesses constituted substantial evidence sufficient to submit the issue of the robber’s identity to the jury. See Jacobs v. State, 316 Ark. 698, 875 S.W.2d 52 (1994) (holding identification testimony from two eyewitnesses and testimony of officer who conducted photographic lineup presented sufficient evidence of defendant's identity as perpetrator).

           With regard to the Sonic robbery, McDaniel testified that she recognized appellant by his eyes. In addition, Smith testified that appellant went toward the Sonic, and later had possession of coin changers that McDaniel stated appeared to be the coin changers taken from the restaurant. Further, the plastic cup lids were located and retrieved from an area that was not readily accessible to the public. McDaniel testified the robber “grabbed everything,” including the ice cream cup lids that were near the safe. Finally, a fingerprint from one of the cups was determined to be appellant’s.

           Circumstantial evidence may constitute substantial evidence to support a conviction. See Medlock v. State, 79 Ark. App. 447, 89 S.W.3d 357 (2002). However, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. Upon review, this court must determine whether the jury resorted to speculation and conjecture in reaching its verdict. Id. Overwhelming evidence of guilt is not required in cases based on circumstantial evidence; the test is one of substantiality. Id. On these facts, a jury was not required to speculate in order to conclude that appellant was one of the Sonic robbers, or that he committed theft of property. Therefore, we affirm the denial of appellant’s motion for a directed verdict.

           Appellant also argues for the first time on appeal that the evidence was insufficient to support the charges of aggravated robbery because he never threatened to shoot anyone. A person commits robbery if, with the purpose of committing a felony or misdemeanor theft, he employs or threatens to immediately employ physical force upon another. See Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person commits aggravated robbery if he commits robbery as defined in section 5-12-102 and he is armed with a deadly weapon. See Ark. Code Ann. § 5-12-103 (Repl. 1997).

           We note that despite the absence of a specific threat to shoot, pointing a gun at someone creates an implied threat of physical force sufficient to support a charge of aggravated robbery. See Knight v. State, 277 Ark. 213, 640 S.W.2d 442 (1982). With regard to the Arby’s robbery, a jury could have reasonably found that when appellant, in fact, pointed the gun at Macklin, ordered him to open the safe, and then further cocked the gun in Macklin’s face, appellant threatened to employ immediate physical force against Macklin. With regard to the Sonic robbery, the jury could have reasonably found that when appellant “put the gun to” McDaniel, made her get up off of the floor, and made her open the safe, he threatened to employ or in fact, employed, immediate physical force against her.

           Affirmed.

           Pittman and Hart, JJ., agree.