Tracy Duane Wright v. State of Arkansas , 2022 Ark. 103 ( 2022 )

Cite as 2022 Ark. 103SUPREME COURT OF ARKANSAS
No. CR-20-403
Opinion Delivered: May 19, 2022
TRACY DUANE WRIGHT
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. 04CR-18-2394]
STATE OF ARKANSAS
APPELLEE HONORABLE BRAD KARREN, JUDGE
AFFIRMED.
COURTNEY RAE HUDSON, Associate Justice
Appellant, Tracy Duane Wright, appeals his convictions of aggravated robbery and
theft of property, and his sentencing as a habitual offender. For reversal, Wright argues that
(1) there was insufficient evidence to convict him of either charged count, and (2) the circuit
court erred by concluding that his earlier Kansas conviction was comparable for sentencing
purposes to an Arkansas serious felony involving violence. Because Wright was sentenced to
life in prison, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a) (2020).
We affirm.
On September 19, 2019, Wright was charged by amended criminal information with
one count of aggravated robbery in violation of Arkansas Code Annotated section 5-12-103
(Repl. 2013) and one count of theft of property in violation of Arkansas Code Annotated
section 5-36-103(a) and (b)(3)(A) (Supp. 2017). Citing Wright’s two prior residential burglary
convictions in Kansas, the State charged that he should be sentenced as a habitual offender
pursuant to Arkansas Code Annotated section 5-4-501(d) (Supp. 2017).
A jury trial was held on November 5–6, 2019. Evidence introduced at trial established
that Melissa Morrison was working as a cashier at the Dollar General store on Eighth Street
in Rogers on November 11, 2018. Morrison testified that a white man wearing a dirty blond
wig with twigs in it entered the store and approached the cashier’s counter with candy to
purchase. Before she could complete the transaction, the man handed her a note and told
her to read it. The note instructed Morrison not to touch anything and to open the cash-
register drawer and put all the money into a bag that he had. The note indicated that the
man had a gun in his waistband, that he would use it, and that the money in the register was
not worth her life. Morrison testified that the man lifted his shirt to reveal a handgun in his
waistband with the grip exposed and the barrel pointing down into his pants. Morrison said
that the gun did not look “real.” She balled up the note, threw it back at the man, and ran
into the office and closed the door. When Morrison saw on the closed-circuit television that
the robber had left the store, she called 911 and reported the incident.
Corporal Jeffrey Lane of the Rogers Police Department was dispatched to the Dollar
General immediately after the robbery. Lane testified that he collected the note and a bag
that the man had dropped in front of the store. Pamela McDonald, the Dollar General store
manager, gave the police surveillance videos of the robbery. The videos showed the robber
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enter the store at approximately 9:24 p.m., interact with Morrison, and exit the store going
south. The robber was wearing a hat, sunglasses, and gloves.
The day after the robbery, Rogers police officer Joshua Martin responded to a call at
Rogers Heritage High School for a report of a firearm found on school property. It turned
out to be a broken toy gun that was found near Holly Street, about one hundred yards from
the Dollar General. Officer Jeffrey Ochoa of the Rogers Police Department, who was the
resource officer at the high school, provided the school’s November 11, 2018 surveillance
videos to police. The videos showed a person on a bicycle heading south at about 9:25 p.m.
and then crossing a field diagonally in the direction of the Guest Inn hotel.
Sunil Panchal testified that he was the manager of the Guest Inn. He provided the
hotel’s surveillance video that showed a person riding a bicycle toward room 124, which had
been rented by Wright. Wright had produced identification when he checked in. Panchal
recalled that Wright was tall and had a small bicycle.
Corporal Gerardo Villar of the Rogers Police Department testified that he was the
lead investigator for the robbery. He said that he came to believe that the toy gun found at
the high school may have been relevant to the robbery because it was found near the Dollar
General. In reviewing the school surveillance video, he saw a person riding a bicycle in a
southwest direction at a high rate of speed toward the Guest Inn. At that hotel, Villar showed
the owner a photo from the video, and he was directed to room 124. No one was in the
room, but it had not yet been cleaned and police found the broken tip of a toy gun in the
trashcan. The tip of the toy gun found in the hotel room matched the toy gun found at the
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high school. Police also found a casino card with Wright’s name on it, the paper insert from
a men’s ball cap, and a tag from a men’s sweatshirt. Villar testified that he obtained Wright’s
hotel check-in information that included photo identification of Wright. As part of his
investigation, Villar accessed a reporting system that documented a transaction Wright made
at Big Brother’s Pawn Shop on Eighth Street. Villar observed that, in video obtained from
the pawn shop, Wright pawned a bicycle while he was wearing gloves that resembled the
ones worn by the robber. Don Gross, who was a Big Brother’s employee, confirmed that
Wright was the person who pawned the bicycle on November 12, 2018.
Chelsea Phipps and her husband, Shawn Phipps, worked at the CarTime auto
dealership on Eighth Street in Rogers. Chelsea testified that she was working there on
November 13, 2018, when Wright and a female entered and asked to test drive the cheapest
vehicle. Chelsea made a copy of Wright’s driver’s license and allowed him to test drive a
Dodge Dakota pickup truck. When Wright did not return for more than an hour, Shawn
reported the vehicle stolen. Thereafter, Wright called and gave Chelsea his female
companion’s phone number and said that they were going to the bank to get the money and
would return in about fifteen minutes. At that point, there had been no sales discussion,
and no paperwork had been prepared. Wright did not return. The next day, officer Robert
Grigg of the Rogers Police Department spotted the truck on the road sometime after 1:00
a.m. and tried to stop it. Grigg testified that the driver fled, and initially evaded him. The
truck was found abandoned a short time later. Officer Christopher Herron of the Rogers
Police Department testified that the engine was still warm, and he discovered Wright and a
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female companion hiding behind air conditioning units at a nearby church. After the truck
was recovered, Villar searched the interior and discovered a hat and sunglasses that
resembled those worn by the robber at the Dollar General.
The State introduced a recording of a telephone call that Wright made to his mother
while he was detained at the Benton County jail. Wright’s mother, Denzel Wright,
confirmed that she was the person on the line with Wright. Denzel asked Wright what he
had done, and he said, “I tried to rob a Dollar General.” Denzel asked, “With a gun?” and
Wright replied, “toy gun.”
Outside the jury’s presence, the circuit court considered whether Wright had
committed two prior felonies involving violence that would qualify him for sentencing as a
habitual offender. The State introduced evidence showing that Wright had been convicted
of burglaries in Kansas in 1989 and 1992. Wright testified that his 1989 conviction involved
him stealing a piece of equipment from his employer’s barn. Despite Wright’s testimony, the
circuit court concluded that Wright’s two Kansas convictions were comparable to an
Arkansas residential-burglary conviction and therefore qualified him for sentencing as a
habitual offender. The circuit court denied Wright’s motions for a directed verdict and
submitted the case to the jury, which convicted him of aggravated robbery of the Dollar
General store and theft of property for taking the truck from CarTime. He was automatically
sentenced as a violent habitual offender to life in prison on the aggravated-robbery charge.
The jury sentenced him to seven and one-half years’ imprisonment and a $5,000 fine for
theft of property. Wright filed a timely appeal.
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In his first point on appeal, Wright asserts that substantial evidence does not support
his convictions for either aggravated robbery or theft of property. In reviewing a sufficiency
challenge, we view the evidence in the light most favorable to the State, considering only the
evidence that supports the verdict. McCray v. State, 2020 Ark. 172, 598 S.W.3d 509. We will
affirm a judgment of conviction if substantial evidence exists to support it. Mabry v. State,
2020 Ark. 72, 594 S.W.3d 39. Substantial evidence is evidence that is of sufficient force and
character that it will, with reasonable certainty, compel a conclusion one way or the other
without resorting to speculation or conjecture. Id. Direct evidence is evidence that proves a
fact without resort to inference when, for example, it is proved by witnesses who testify to
what they saw, heard, or experienced. Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731.
Circumstantial evidence is evidence of circumstances from which a fact may be inferred. Id.Circumstantial evidence may provide a basis to support a conviction, but it must be
consistent with the defendant’s guilt and inconsistent with any other reasonable conclusion.
Armstrong v. State, 2020 Ark. 309, 607 S.W.3d 491. Whether the evidence excludes every
other hypothesis is left to the jury to decide. Id. Further, the credibility of witnesses is an
issue for the jury, not the court; 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.
Howard v. State, 2016 Ark. 434, 506 S.W.3d 843.
We first consider the sufficiency of the evidence supporting Wright’s aggravated-
robbery conviction. Wright argues that his conviction was based entirely on circumstantial
evidence and was consistent with several other conclusions because no witnesses identified
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him as the robber, and one eyewitness testified that a male in the area at the time of the
robbery was in his early twenties when Wright was forty-seven at the time of the robbery.
Wright does not seriously contest that someone robbed the Dollar General store. Instead,
he argues that there is insufficient evidence to prove that he was the individual who
committed that robbery.
Pursuant to Arkansas Code Annotated section 5-12-103(a)(1), a person commits
aggravated robbery if the person commits a robbery and is armed with a deadly weapon,
represents by word or conduct that he or she is armed with a deadly weapon, or inflicts or
attempts to inflict death or serious physical injury upon another person. A person commits
robbery if, with the purpose of committing a felony or misdemeanor theft or resisting
apprehension immediately after committing a felony or misdemeanor theft, the person
employs or threatens to immediately employ physical force upon another person. Ark. Code
Ann. § 5-12-102(a) (Repl. 2013). A person commits theft of property if that person knowingly
exercises unauthorized control over the property of another person with the purpose of
depriving the owner of the property, or if the person obtains the property of another by
deception or threat with the purpose of depriving the owner of the property. Ark. Code Ann.
§ 5-36-103(a) (Repl. 2013). Physical force is defined as bodily impact, restraint, confinement,
or the threat thereof. Ark. Code Ann. § 5-12-101 (Repl. 2013). A firearm is a deadly weapon.
Ark. Code Ann. § 5-1-102(4)(A) (Repl. 2013).
With these authorities in mind, we consider the evidence supporting Wright’s
aggravated-robbery conviction. Video from the Dollar General store, Morrison’s testimony,
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and the threatening note that demanded money, demonstrate that someone entered the
Dollar General store and threatened to use force in an attempt to commit a theft. Because
that person represented that he was armed with a deadly weapon, the robbery was an
aggravated robbery. There is also evidence demonstrating that Wright was the person who
committed the robbery. Wright confessed to his mother that he tried to rob a Dollar General
store with a toy gun. In addition to this confession, the record contains other evidence
identifying Wright as the robber. Although Morrison could not identify Wright as the
robber, she testified that the robber was a white male. Video evidence showed that a person
was riding a bicycle on the high school grounds near where a broken toy gun was found. The
bicyclist was traveling away from the Dollar General store and toward the Guest Inn where
Wright had rented a room. The broken tip matching the toy gun that was recovered at the
school was found in the room that Wright rented, as were a paper insert for a men’s cap and
Wright’s casino card. Additionally, the day that Wright left the Guest Inn, he pawned a
bicycle while wearing gloves that resembled those that the robber wore. The following day,
the truck that Wright had taken from CarTime was involved in a police chase. After the
police located the truck, Wright was found hiding nearby, and a hat and sunglasses
resembling those that the robber wore were found inside the truck. Viewing this evidence in
the light most favorable to the State, substantial evidence supports the jury’s verdict finding
Wright guilty of aggravated robbery.
Next, we turn to Wright’s argument that the evidence was insufficient to support his
conviction for theft of property regarding the truck he took from CarTime. Although he
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does not dispute taking the truck for a drive, Wright asserts that the State failed to introduce
sufficient evidence that he intended to permanently deprive the truck’s owner of the
property. A person commits theft of property if the person knowingly exercises unauthorized
control over the property of another person “with the purpose of depriving the owner of the
property[.]” Ark. Code Ann. § 5-36-103(a)(1). A criminal defendant’s intent or state of mind
is seldom capable of proof by direct evidence and must usually be inferred from the
circumstances of the crime. Wilson v. State, 2017 Ark. 217, 521 S.W.3d 123. Because intent
cannot be proved by direct evidence, the jurors can draw upon their common knowledge
and experience to infer it from the circumstances. Id.Evidence at trial established that Wright lied about returning the truck, never
returned it, and, when a police officer located the truck the next day and attempted to make
a traffic stop, Wright fled. After initially evading authorities, Wright abandoned the truck
and attempted to hide. Wright’s flight is indicative of his guilt. Hayes v. State, 2014 Ark. 104,
431 S.W.3d 882. Although he argues that the fact that he gave CarTime his identification
and called them once while he had the truck indicates that he did not intend to deprive
CarTime of its property, the jury could properly infer Wright’s intent from the circumstances
surrounding the crime. Armstrong, 2020 Ark. 309, 607 S.W.3d 491. Viewing the evidence in
the light most favorable to the State, substantial evidence supports Wright’s conviction for
theft of property.
In his second point, Wright insists that the circuit court erred when it determined
that his 1989 conviction for burglary in Kansas qualified for sentencing purposes as a prior
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felony involving violence because it was comparable to an Arkansas residential burglary. He
seeks reversal of this finding as well as the statutorily mandated life sentence for aggravated
robbery. The determination of whether a felony conviction from another jurisdiction is
comparable to an enumerated felony involving violence under Arkansas criminal law lies
within the discretion of the circuit court at the time of sentencing. Ark. Code Ann. § 5-4-
501(d)(3)(B).
Wright was convicted of aggravated robbery, which, pursuant to Arkansas Code
Annotated section 5-4-501(d)(2)(A)(iv), is a “felony involving violence.” Aggravated robbery
is a Class Y felony. Ark. Code Ann. § 5-12-103(b). Wright’s conviction of aggravated robbery
made him eligible for sentencing as a habitual offender if he had previously been convicted
of two other felonies involving violence. Ark. Code Ann. § 5-4-501(d)(1). According to
Arkansas Code Annotated section 5-4-501(d)(2)(A)(xi), residential burglary as defined by
section 5-29-201(a) is a felony involving violence. Additionally, a conviction of “a comparable
serious felony involving violence from another jurisdiction[]” may qualify as a prior
conviction for sentencing purposes. Ark. Code Ann. § 5-4-501(d)(2)(B).
Wright does not challenge the circuit court’s use of his 1992 Kansas burglary
conviction. He does, however, argue that the court erred by ruling that his 1989 conviction
was comparable to an Arkansas residential-burglary conviction. In 1989, Wright pled guilty
to three counts of burglary in violation of Kansas Statutes Annotated section 21-3715. The
Kansas statute in effect at the time defined burglary as
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knowingly and without authority entering into or remaining within any
building, mobile home, tent or other structure, or any motor vehicle, aircraft,
watercraft, railroad car or other means of conveyance of persons or property,
with intent to commit a felony or theft therein.
Kan. Stat. Ann. § 21-3715 (1988).
At the time of Wright’s offense, a person committed residential burglary in Arkansas
if he or she enters or remains unlawfully in a residential occupiable structure
of another person with the purpose of committing in the residential
occupiable structure any offense punishable by imprisonment.
Ark. Code Ann. § 5-39-201 (Repl. 2013).
A residential occupiable structure
means a vehicle, building, or other structure:
(i) In which any person lives; or
(ii) That is customarily used for overnight accommodation of a person
whether or not a person is actually present.
Ark. Code Ann. § 5-39-101 (Supp 2017).
Wright argues that his Kansas conviction is not comparable to an Arkansas
residential-burglary conviction because the Kansas statute includes burglaries committed in
nonresidential places. He contends that a barn is not included in the Arkansas definition of
a residence and that the Kansas law does not define residence. He asserts that any doubts
must be resolved in his favor. The evidence in the record, however, clarifies the nature of his
crime. Although Wright testified that his 1989 Kansas conviction was based on his theft of
a piece of farm equipment from his employer’s barn, the State introduced the 1989 Kansas
information charging Wright with three counts of burglary. Count one charged that “on or
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about the 20th day of June, 1989, TRACY D. WRIGHT, did unlawfully, feloniously,
willfully, knowingly and without authority, enter into or remain within the residence of Jack
Orr . . . with the intent to commit a felony or theft therein.” Wright pled guilty to count
one, as well as the other two counts, which alleged burglaries of commercial establishments.
Other than his own self-serving testimony, Wright offered no evidence to dispute the factual
basis for the count charging him with committing a residential burglary in Kansas. In light
of the information’s factual description of the offense and Wright’s guilty plea to the charge,
the court did not err in determining that his 1989 offense was comparable to an Arkansas
residential burglary. Because aggravated robbery is a Class Y felony, a life sentence was
mandatory. Ark. Code Ann. § 5-4-501(d)(1)(A).
4-3(a) Review
In compliance with Arkansas Supreme Court Rule 4-3(a), we have examined the
record for all objections, motions, and requests made by either party that the circuit court
decided adversely to Wright. We find no prejudicial error.
Affirmed.
Digby Law Firm, by: Bobby R. Digby II, and Daniel S. Marks, for appellant.
Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.
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