Benton v. State

JOSEPHINE LINKER HART, Judge,

concurring in part and dissenting in part.

I agree to affirm Benton’s conviction for theft by receiving, albeit for a somewhat different reason. I cannot agree to affirm Benton’s second-degree-forgery conviction because there was insufficient corroboration of Stigger’s testimony.

First, with regard to the majority’s disposition of Benton’s theft-by-receiving conviction, Core v. State, 265 Ark. 409, 578 S.W.2d 581 (1979), does hold that a plausible 19explanation alone does not, as a matter of law, necessarily overcome the recently-stolen unexplained-possession presumption. However, the Core court indicated that more was required of a reviewing court than the majority has undertaken. In affirming Core’s conviction, it noted, “Here there were valid reasons for discounting the credibility of Core, as indicated by inconsistencies in his testimony, such as the price he paid for the items involved and the number of sellers from whom he purchased.” Core, 265 Ark. at 413, 578 S.W.2d at 588. Similarly, there was also a substantial basis for discounting Benton’s explanation because through the testimony of Sergeant Sandine, the State presented evidence that Benton “blurted out” that he found the ring on the ground before his ownership was even made an issue. As the majority noted, although the police believed that Benton was involved in Stigger’s forgery, he was being arrested on outstanding warrants. It was this fact alone that made Benton’s explanation implausible. Our supreme court has held that an implausible explanation of the circumstances surrounding an alleged involvement in a crime can constitute substantial evidence of guilt. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003); Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Accordingly, I concur in affirming Benton’s theft-by-receiving conviction.

I cannot, however, find sufficient evidence to affirm Benton’s conviction for forgery. A conviction in a felony case cannot be had on the testimony of an accomplice unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense. Ark.Code Ann. § 16-89-111(e)(1)(A) (Repl.2005). Corroboration is insufficient if it merely shows that the offense was committed and the circumstances thereof. Ark.Code |1()Ann. § 16-89-lll(e)(l)(B). It is settled law that the corroborating evidence must be substantial; however, it need not be so substantial in and of itself to sustain a conviction. Andrews v. State, 344 Ark. 606, 42 S.W.3d 484 (2001). While the corroborating evidence may be circumstantial, it must nonetheless be substantial. Green v. State, 365 Ark. 478, 231 S.W.3d 638 (2006). Evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s testimony. Id. The test is whether, if the testimony of the accomplice were completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Martin v. State, 346 Ark. 198, 57 S.W.3d 136 (2001).

Without Stigger’s testimony, there is nothing to place Ms. Racy’s check in Benton’s possession. I am mindful that Benton was found in possession of one piece of jewelry taken during the December 11 burglary, but it is only speculation that the check in question was taken at that same time. Ms. Racy had not noticed that the check was stolen in her initial police report and only assumed that it was taken during the burglary. Unlike the jewelry that she positively noted was on her dresser on the day of the burglary, she was only able to recall seeing her checkbooks in her home several days before. Accordingly, she was speculating that the checks were taken during the burglary. Moreover, Benton’s possession of the ring supported only a conviction of theft by receiving, not theft or burglary. Implicit in his possession of the ring was an acknowledgment by the State that there were other ways that Benton could have come into possession of the ring than being a participant in the December |; ,11 burglary. It is noteworthy that in its closing argument to the jury, the State makes this very point. The prosecutor stated,

I’ve not charged him with burglary. I’ve not charged him with theft of property, simply because of what Mr. Corde-ro says. We don’t have anybody who can say, “I saw a 5' 8", 220 pound man leaving,” or, “I saw Gary Benton leaving.”

Generally, the appellate courts of this state have noted that evidence of the presence of an accused in proximity of a crime, opportunity to commit the offense, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Passley v. State, 323 Ark. 301, 915 S.W.2d 248 (1996). The State failed to present this type of proof. Although Stig-ger claimed that Benton waited for her in his car while she cashed the check, the State produced no independent evidence— neither surveillance video nor eyewitness testimony — that placed Benton at the convenience store on the night in question. Likewise, the State produced no evidence placing Benton with Stigger at any other time. Further, the State did not introduce any type of physical evidence. There was no analysis of the handwriting on the check that Stigger claimed was “all made out” when she allegedly obtained the check from Benton. Moreover, no other checks were found on Benton or in his effects, despite Stigger’s claim that Benton had another check that he asked her to cash. Accordingly, the jury would be left to speculate that the two crimes were related. Benton’s conviction for second-degree forgery should be reversed and dismissed.

VAUGHT, C.J., joins.