FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-15-1302]
HONORABLE JOANNA TAYLOR, JUDGE
Burns Law Firm, PLLC, by: Jack D. Burns and Meagan Burns, for
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
Torres Vega was convicted by a Washington County jury of
attempted murder in the second degree and of being a felon in
possession of a firearm. He was sentenced to a combined total
of fifty-five years' imprisonment in the Arkansas
Department of Correction. He appeals, arguing that the
identification evidence presented by the State was
insufficient to support his convictions. We affirm.
a member of a gang known as the Wicked Brown Suspects (WBS).
On June 25, 2015, he and fellow gang member Jose Yanez were
at a convenience store in Springdale, Arkansas. While they
were in the store, members of a rival gang, the Termite Loco
Sureños (TLS), entered the store, and an altercation
ensued between the two gangs. Following the altercation, the
members of TLS fled from the rear of the store on foot. Vega
and Yanez exited the front of the store and left in a silver
car. Vega and Yanez pursued the TLS members, who scattered in
different directions. One TLS member ditched his bicycle and
fled between houses. The incident involving Vega at the
convenience store was reported to the police at 6:22 p.m.
p.m., Springdale police received notification that a boy
riding his bicycle had been shot several blocks from the
convenience store. Responding to this emergency, the police
began to investigate. They determined that the victim, Joseph
Garcia, was only fifteen years of age. Garcia suffered
gunshot wounds to his hand, thigh, and lower leg with one of
the bullets striking an artery at the knee. If left
untreated, he could have lost his lower leg, his foot, or
some toes. Before being transported to the hospital, Garcia
told officers at the scene that he believed the person who
shot him was wearing a gray shirt and blue shorts and left in
a silver car.
Garcia left the scene, the police continued their
investigation by interviewing witnesses. One of the witnesses
to the shooting, Ravae Baker, stated that she heard two
gunshots and saw a silver four-door car leaving the scene.
She said that there were two, possibly three, people in the
car. Another witness, Jolene Stepp, stated that she saw
Garcia riding his bike, when someone got out of a silver or
gray car and pushed him off his bike. She then heard two
shots. She was unable to get a good look at the person.
their investigation, the police went to the hospital to
obtain further statements from Garcia. Garcia stated that he
was riding his bike home when a car pulled up and somebody
asked, "Where are you from?" When he did not
respond, a man exited the vehicle, shoved him off his bike,
pulled out a large semiautomatic black pistol, and started
shooting at him. The man then jumped back into the car and
drove away. He described the suspect as a Hispanic male
approximately 5'11" to 6'2" tall, heavyset,
with a shaved head and no facial hair. Garcia was shown a
photo lineup, and he selected Vega's picture as the one
depicting the person who shot him. However, he stated he was
only 75 percent sure of his selection at the time. Garcia
gave a different description of the vehicle. He described the
car as possibly a black Honda-type car with two people in it.
next day, the police located a silver car in front of
Yanez's house. Vega was subsequently taken into custody
and interviewed. He admitted participating in the altercation
at the convenience store but denied participation in the
shooting. The police found nothing in the vehicle to connect
it to the shooting.
was initially charged with attempted capital murder; engaging
in a continuing criminal gang, organization, or enterprise;
and being a felon in possession of a firearm. The information
was subsequently amended to charge attempted first-degree
murder and being a felon in possession of a firearm. The
information was amended a second time to include a firearm
enhancement. The matter proceeded to trial. The jury
ultimately convicted Vega of the lesser-included offense of
attempted second-degree murder, of being a felon in
possession of a firearm, and of the firearm enhancement. He
was sentenced to a combined total of fifty- five years in the
Arkansas Department of Correction. He now appeals,
challenging the sufficiency of the evidence.
only element of the offenses Vega challenges on appeal is his
identity as the perpetrator. The identification of the
defendant as the perpetrator of the crime is an element of
every criminal case. Stewart v. State, 88 Ark.App.
110, 195 S.W.3d 385 (2004). He alleges that Garcia, the only
person who could identify him, was unable to conclusively
identify him and that he gave conflicting, inconsistent
testimony regarding the events surrounding the shooting and
in his identification of him.
his testimony, Garcia was cross-examined about discrepancies
in his testimony. He admitted a discrepancy concerning the
description of his assailant. He told the police his
assailant was wearing a black or dark gray t-shirt, dark blue
or black shorts, and white tennis shoes, but he told his
uncle that one of his attackers was wearing a white t-shirt
and blue jean pants. He also admitted a discrepancy
concerning the description of the vehicle. He described the
vehicle as silver on one occasion and black on another. He
explained his previous discrepancies were the result of being
in shock from the incident. He went on to positively identify
Vega, saying he was 90 percent sure that Vega was the person
who shot him. Vega argues that because Garcia was unable to
unequivocally identify him and had previously given
conflicting descriptions, his testimony was insufficient to
support his convictions.
Vega's argument unpersuasive. When we review the
sufficiency of the evidence, we consider the testimony in the
light most favorable to the State. Taylor v. State,
2011 Ark. 10, 370 S.W.3d 503. Here, Garcia
positively identified Vega as the person who shot him and
explained his previous inconsistencies. When a witness makes
a positive identification of a suspect, any challenge to the
reliability of the identification becomes a matter of
credibility for the fact-finder to determine. Mason v.
State, 2013 Ark. 492, 430 S.W.3d 759. The circuit court
is not to assess credibility or resolve conflicts in the
testimony in considering a directed-verdict motion.
Id.; see also State v. Long, 311 Ark. 248,
251, 844 S.W.2d 302, 304 (1992) ("[W]hen a trial court
exceeds its duty to determine the sufficiency of the evidence
by judging the credibility of the evidence, it commits an
error that requires ...