Opinion
No. 106,091.
2012-09-7
STATE of Kansas, Appellee, v. Darnell L. HUEY, Appellant.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge. Mark L. Bennett, Jr., of Bennett & Hendrix, L.L.P., of Topeka, for appellant. Chadwick J. Taylor, district attorney, Jodi Litfin, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Cheryl Rios Kingfisher, Judge.
Mark L. Bennett, Jr., of Bennett & Hendrix, L.L.P., of Topeka, for appellant. Chadwick J. Taylor, district attorney, Jodi Litfin, assistant district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Darnell L. Huey appeals his convictions following a jury trial of one count of robbery and one count of criminal use of a financial card. Huey claims there was insufficient evidence to support his convictions. We conclude the evidence was sufficient to support the convictions, and we affirm the district court's judgment.
On May 6, 2010, Alan Strong was robbed while walking from his residence in downtown Topeka to a doctor's appointment at St. Francis Hospital. The robber took Strong's wallet, which contained a bank card and several other items belonging to Strong. The bank card was used multiple times that same morning without Strong's authorization. Three days later, Huey was stopped by police on an unrelated matter. During a search of Huey's person, police discovered Strong's photo identification and medical card, which were both in Strong's wallet when he was robbed.
On September 9, 2010, the State charged Huey with one count of robbery and one count of criminal use of a financial card. A jury trial was held on March 7 and 8, 2011. At trial, Strong testified that around 5:30 a.m. on May 6, 2010, he was walking to the hospital for an appointment to get his blood drawn. It was still dark outside, and Strong was listening to music through headphones. As Strong was walking, a stranger approached him from the opposite direction and asked if he had a light, to which Strong said no. Strong continued walking, but the stranger followed him and asked where he was going. Strong told the stranger he was heading to the hospital for a doctor's appointment. About a block later, the stranger asked Strong if he had change for a $20 bill. Strong retrieved his wallet to look for change, but the stranger grabbed the wallet. The two men struggled briefly, but the stranger ran away with the wallet.
Strong testified that he went to his doctor's appointment, ate breakfast, and then went to his bank soon after it opened to report that his bank card was stolen. At the bank, Strong discovered that his bank card was used five times without authorization: on a T–Mobile cell phone, on a Verizon cell phone, at a Kwik Shop gas station, at a Sonic restaurant, and at a Wal–Mart store. Strong then went to the police department to file a report of the robbery. At trial, Strong described the stranger who robbed him as a black male of average build, around 20 to 30 years old, and wearing a jacket. Strong was unable to make an in-court identification of Huey as the robber and admitted that he has a hard time identifying people. Strong also admitted that at the time of the robbery, he was on several medications for depression, anxiety, and schizophrenia or thought disorders.
Maudie Cooper testified that around 6 or 7 a.m. on May 6, 2010, she met Huey at the house of her friend, an individual identified only as Victor. Cooper stated that Victor asked her if she could drive Huey around in exchange for some gas money. According to Cooper, Huey told her that his uncle was at a doctor's appointment and had given Huey permission to use his bank card in the meantime. The three people—Cooper, Victor, and Huey—got into Cooper's car and drove to pick up Huey's girlfriend. While waiting for Huey's girlfriend to come out of the house, Cooper gave Huey her cell phone so that he could add minutes. Cooper testified that Huey had already added minutes to his own cell phone.
After picking up Huey's girlfriend, the four people—with Cooper driving, Victor in the front seat, and Huey and his girlfriend in the back seat—went to a Kwik Shop gas station. Huey handed Cooper the bank card and directed her to pump $20 of gas, which she did. Huey and his girlfriend then decided that they wanted to go to Sonic. They ordered food, and Huey handed the bank card to Cooper in order to pay. Cooper next drove back to Huey's girlfriend's house to drop her off. According to Cooper, Huey and his girlfriend were arguing about cell phones because she had wanted an upgrade. Huey promised his girlfriend that he would be back.
Huey then asked Cooper to drive to Wal–Mart. Cooper, Victor, and Huey entered the store and went to the electronics area. Victor and Huey selected a camera and a couple of phones. Cooper testified that Huey gave her the bank card to use for the purchase, showed her how to use the electronic card machine, and asked her to sign the signature screen. Finally, the three people left Wal–Mart and Cooper took Huey home. Huey gave one phone to Victor but took the rest of the purchases. A surveillance video and several photos of the Wal–Mart transaction were admitted at trial.
Two Topeka police officers testified that they stopped Huey on May 9, 2010, for reasons unrelated to the robbery and use of Strong's bank card. They searched Huey and discovered that he was carrying Strong's photo identification and medical card. Detective Kent Biggs testified that after Huey was discovered in possession of Strong's photo identification and medical card, Huey became a potential suspect in the robbery of Strong. Biggs developed a photo lineup that included Huey and five other men with similar physical characteristics. Four of the six men, including Huey and an individual identified as Jermaine Cunningham, were wearing jackets in the photos.
On May 26, 2010, Biggs met with Strong to show him the photo lineup. Biggs testified that Strong looked through the six photos individually, then set two photos aside—Huey and Cunningham—and stated, “That's him.” Strong apparently believed that Huey and Cunningham were the same person. Strong confirmed during his testimony that he thought he had selected two separate photos of the same person. After showing Strong the photo lineup, Biggs discovered that Cunningham had been deceased since 2006 and thus could not be a suspect in the robbery of Strong.
Biggs then spoke with Huey, who agreed to waive his Miranda rights. According to Biggs, Huey stated that he found Strong's wallet by a tree and that he had intended to turn the wallet over to the police. With respect to Strong's bank card, Huey admitted that he was present on the morning the card was used, but he indicated that all the transactions were completed by Cooper.
Huey did not testify at trial and did not present any evidence. During closing argument, Huey argued that Strong's identification of him during the photo lineup was unreliable, that Cooper's testimony was not credible, and that the jury could reasonably conclude from the evidence that Victor or possibly some other person had committed the robbery. Huey also argued that although he was present during the transactions, it was actually Cooper and Victor who used Strong's bank card. The jury found Huey guilty of robbery and criminal use of a financial card. Huey timely appealed his convictions.
Huey's sole argument on appeal is that there was insufficient evidence to support his convictions. With respect to the robbery, Huey contends that Strong's identification of Huey as the robber was insufficient because Strong could not make an in-court identification and because Strong's identification of Huey from the photo lineup was unreliable. With respect to criminal use of a financial card, Huey argues that the evidence showed that he did not actually use Strong's bank card or obtain any goods or property. Furthermore, Huey argues that his mere presence during the transactions was insufficient to establish that he had aided or abetted the crime.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011). An appellate court does not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses. Moreover, a conviction of even the gravest offense can be based entirely on circumstantial evidence and the inferences fairly deducible therefrom. 291 Kan. at 710.
Huey points to several factors that he believes show that Strong's identification of him was insufficient to establish that he was the robber. First, Strong was unable to make an in-court identification, and Strong's trial testimony describing the robber was somewhat inconsistent with his previous descriptions. Second, Strong admitted that it was dark at the time of the robbery and that he was on several medications, which Huey contends could have impacted Strong's ability to perceive the robber. Third, during the photo lineup, Strong selected the photos of two individuals (Huey and Cunningham), who he believed were the same person. Both of those individuals were wearing jackets in their photos, and Strong had testified that the robber was wearing a jacket.
But there was additional evidence that, when viewed in a light most favorable to the State, could convince a reasonable jury that Huey was the robber. First, 3 days after the robbery, Huey was discovered to be in possession of Strong's photo identification and medical card. A reasonable jury could infer that the person in possession of these cards was also the person who had taken the wallet. Second, Strong testified that he had told the robber he was on his way to a doctor's appointment, and Cooper testified that Huey had told her he had permission to use Strong's bank card while his uncle was at a doctor's appointment. A reasonable jury could infer that Huey used actual information Strong had told him just before the robbery in order to fabricate the story he told Cooper. Third, Cooper testified that Huey was the person in possession and control of the bank card. A reasonable jury could infer that, assuming Cooper's testimony was credible, the person who controlled the bank card was also the person who had taken the wallet. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could find that Huey was the person who committed the robbery. Thus, there was sufficient evidence to support Huey's conviction of robbery.
There was also sufficient evidence presented at trial from which a reasonable jury could conclude that Huey had used Strong's bank card without permission. Strong testified that he did not authorize anybody else to use his bank card. Cooper testified that Huey used the bank card to put minutes on both of their cell phones, directed her to use the bank card to pump gas at Kwik Shop, handed her the bank card to purchase food at Sonic, and instructed her to use the bank card to purchase a camera and cell phones at Wal–Mart. Cooper also testified that Huey and Victor selected the items to be purchased at Wal–Mart, including some cell phones, after Huey had argued with his girlfriend about getting a cell phone upgrade. Cooper stated that Huey took most of the purchases with him when he left.
Huey admitted that he was present during the transactions but argues that the only objective evidence showed that Cooper, not Huey, used the bank card. But Cooper's testimony, if believed, clearly established that Huey instigated and controlled the use of the bank card. Viewing the evidence in the light most favorable to the prosecution, a reasonable jury could find that Huey had used Strong's bank card without permission. Thus, there was sufficient evidence to support Huey's conviction of criminal use of a financial card.
Affirmed.