Procella v. State

Cite as 2016 Ark. App. 515

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-380

Opinion Delivered: November 2, 2016
JEFFERY DUANE PROCELLA
APPELLANT
APPEAL FROM THE MILLER
V. COUNTY CIRCUIT COURT
[NO. 46CR-15-324]
STATE OF ARKANSAS
APPELLEE
HONORABLE CARLTON D. JONES,
JUDGE

AFFIRMED

BART F. VIRDEN, Judge

A Miller County jury convicted appellant Jeffery Duane Procella of two counts of

theft of scrap metal and two counts of first-degree criminal mischief. He was sentenced to

an aggregate term of twelve years’ imprisonment. On appeal, he argues that the trial court

erred in denying his directed-verdict motions because there was insufficient corroboration

of accomplice testimony. We affirm.

I. Trial Testimony

Darin Archer, a senior special agent with the Union Pacific Railroad Police, testified

that signal crossings are designed to prevent a vehicle from being struck by a train. He

explained that there is a wire that runs under the tracks and attaches to a junction box and

that, when the train’s wheels touch the track, a signal is sent through the shunt wire to the

box to activate the crossing signal. He testified that shunt wire controlling a crossing signal

at the Pinehurst Street Station in Texarkana had been cut and removed on April 14, 2015,
Cite as 2016 Ark. App. 515

creating a public-safety concern. Following the theft, Archer placed a motion-activated

camera at that location. On April 18, 2015, the wire was again cut and removed. The photos

were downloaded, and the wire was replaced. Again, on the morning of April 19, 2015, the

wire was cut and removed. Archer downloaded the photos and contacted police.

While replacing the camera located along a tree line, a man later identified as Procella

was seen walking along the tracks. Archer stated that Procella was standing where the wire

had been cut and appeared to be looking at the newly replaced shunt wire. Archer made

contact with Procella because he was trespassing. Archer testified that Procella had admitted

being on the tracks on both April 18 and 19 but denied cutting or stealing any wire. Archer

said that Procella did admit having picked up wire that he claimed had been left lying on

the ground.

Archer was shown a sequence of photos from the motion-activated camera. He

testified that the photos showed a white male wearing a backpack and a white female holding

a bag or backpack. According to Archer, the male in the photo appeared to be looking at

the shunt wire. Archer testified that the wire was visible in one photo but was gone from

the next photo. Archer stated that twenty-five to thirty feet of wire had been stolen each

time and that the wire was worth approximately $10. He explained that the wire was flexible

in that it could be folded or rolled and would fit inside a backpack.

Adam Lange, a signal maintainer for Union Pacific, testified that he replaced the

signal shunt wire each time it had been stolen and specifically denied having left any excess

wire on the ground. He said that it took approximately one minute to roll up thirty feet of

shunt wire. Lange was shown the same sequence of photos and similarly testified that the

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signal shunt wire could be seen in one photo but not in the photo immediately following

that one. Lange confirmed that approximately $800 in damage was caused each time the

wire had been cut. Lange said that there had been no more thefts of wire since April 19,

2015.

Amy Telles admitted that she and Procella, her boyfriend at the time, were the

individuals depicted in the photos taken on April 18 and 19. In describing the shunt wire,

Telles stated that it was underneath the tracks and led to boxes. According to Telles, Procella

had cut the signal shunt wire with clippers, rolled it up, and concealed it in their backpacks.

II. Accomplice Testimony

Arkansas law is clear that a conviction cannot be had in any case of felony upon the

testimony of an accomplice unless corroborated by other evidence tending to connect the

defendant with the commission of the offense. Smith v. State, 2012 Ark. App. 534, 423

S.W.3d 624. An accomplice’s testimony, however, need not be corroborated as to a

misdemeanor. See Ark. Code Ann. § 16-89-111(e)(2) (Supp. 2015). Here, Procella was

charged with four Class D felonies, but the two counts of first-degree criminal mischief

were reduced from Class D felonies to Class A misdemeanors.

A. Theft of Scrap Metal

A person commits theft of property if he knowingly takes or exercises unauthorized

control over the property of another with the purpose of depriving the owner of the

property. Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2015). Theft of scrap metal is a Class A

misdemeanor if the value of the property is $1,000 or less. Ark. Code Ann. § 5-36-

123(c)(4)(A). Upon conviction of a person for theft of scrap metal, the classification and

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penalty range shall be increased by one classification if the person caused incidental damage

to the owner of the scrap metal or the property of the owner of the scrap metal while

committing the theft of scrap metal and the costs of incidental damage were more than

$250. Ark. Code Ann. § 5-36-123(e)(1).

B. First-Degree Criminal Mischief

A person commits the offense of criminal mischief in the first degree if he purposely

and without legal justification destroys or causes damage to any property of another. Ark.

Code Ann. § 5-38-203(a)(1) (Repl. 2013). Criminal mischief in the first degree is a Class A

misdemeanor if the amount of actual damage is $1,000 or less. Ark. Code Ann. § 5-38-

203(b)(1).

The jury was instructed that Procella could be convicted of neither theft of scrap

metal nor first-degree criminal mischief without evidence corroborating his accomplice’s

testimony. Although Procella challenged the sufficiency of the corroborating evidence in

his directed-verdict motions and in his brief on appeal, the issue of whether corroboration

was even required under section 16-89-111 based on each offense’s classification has not

been argued by either party. We recognize that there is some question whether the theft of

scrap metal here constituted a misdemeanor that was not converted into a felony until after

it was enhanced “upon conviction”; however, we will analyze the argument as it was framed

for us.

III. Discussion

Procella argues that, aside from Telles’s testimony, there were photos of him and

Telles on the tracks but that none of the photos showed him cutting or concealing any shunt

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wire. Procella argues that the officers searched his backpack and person but did not find

wire, clippers, or receipts reflecting the sale of scrap metal. Procella points out that others

had been in the vicinity—there was a vagrant camp and an animal shelter nearby. Moreover,

he contends that he, along with an unknown number of people, used the well-worn walking

trails in the area.

The corroboration of accomplice testimony is not sufficient if it merely shows that

the offense was committed and the circumstances thereof. Smith, supra. The corroboration

must be sufficient, standing alone, to establish the commission of the offense and to connect

the defendant with it. Id. The test for corroborating evidence is whether, if the testimony

of the accomplice were totally eliminated from the case, the other evidence independently

establishes the crime and tends to connect the accused with its commission. Id.

The corroborating evidence may be circumstantial so long as it is substantial;

evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice’s

testimony. Riley v. State, 2009 Ark. App. 613, 343 S.W.3d 327. The presence of an accused

in proximity of a crime, opportunity, and association with a person involved in the crime

are relevant facts in determining the connection of an accomplice with the crime. Id.

Corroborating evidence need not, however, be so substantial in and of itself to sustain a

conviction. Smith, supra. Rather, it need only, independently of the testimony of the

accomplice, tend in some degree to connect the defendant with the commission of the

crime. Id.

The jury saw the sequence of photos taken by the motion-activated camera and also

heard testimony from both Archer and Lange that the shunt wire was visible in one photo,

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but in the next photo, the wire was gone. There was testimony that Procella admitted

having been in the area where the shunt wire was stolen on April 18 and 19. The photos

indicated that only Procella and his accomplice were near the shunt wire prior to its being

stolen. According to testimony, Procella even admitted taking wire from the area, and the

jury could have believed Lange’s testimony that he did not leave unused wire on the ground

when replacing the stolen wire. Finally, there was testimony that the theft of the shunt wire

stopped after Procella had been caught. This circumstantial evidence independently

establishes the crimes and tends to connect Procella to the commission of those crimes. We

hold that the corroborating evidence was substantial and thus affirm Procella’s convictions.

Affirmed.

GLADWIN, C.J., and GLOVER, J., agree.

Phillip A. McGough, P.A., by: Phillip A. McGough, for appellant.

Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.

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