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Perry v. State

Supreme Court of Arkansas

December 18, 2014

KIYWUAN PERRY, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT. NO. CR2012-1791. HONORABLE HERBERT THOMAS WRIGHT, JUDGE.

Omar Greene, for appellant.

Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice. BAKER and HART, JJ., concur.

OPINION

Page 651

JIM HANNAH, Chief Justice

A Pulaski County jury convicted appellant, Kiywuan Perry, of capital murder and aggravated robbery. The circuit court sentenced Perry to consecutive terms of life imprisonment without parole for the capital-murder conviction and forty years for the aggravated-robbery conviction. Perry contends on appeal that the circuit court erred in denying his motion for directed verdict and abused its discretion in refusing to submit to the jury his proffered verdict forms on accomplice liability. Because this is a criminal appeal in which a sentence of life imprisonment has been

Page 652

imposed, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(a)(2) (2014). We affirm.

Perry's convictions stem from a robbery and murder that occurred at an El Chico restaurant in Little Rock. According to the testimony and evidence presented at trial, on the evening of April 15, 2012, Perry and his brother, Zeckeya Perry,[1] entered the restaurant carrying guns and wearing hoodies, sunglasses, and bandanas. They forced all of the restaurant's customers and employees, except for waiter, Jesus Herrera, into a walk-in cooler. While inside the cooler, the customers and employees heard gunshots, and upon exiting the cooler, they found Herrera lying on the floor, fatally shot. An undetermined amount of money was stolen from the restaurant manager's office during the robbery.

On appeal, Perry first contends that the State presented insufficient evidence of his guilt of both offenses at trial. Specifically, he claims that the testimony of four prosecution witnesses--Quantez Dobbins, Kenya Smith, Adrian Brooks, and Tyrone Barbee--was " so clearly unbelievable" that their testimony should be disregarded as a matter of law. Next, Perry claims that the evidence at trial failed to corroborate the testimony of accomplices, Dobbins, Smith, and Brooks.[2]

The State contends that this court cannot address Perry's claims because they are not preserved for our review. We agree. A challenge to the sufficiency of the evidence is preserved by making a specific motion for directed verdict at the close of the State's evidence and at the close of all of the evidence. E.g., Maxwell v. State, 373 Ark. 553, 558, 285 S.W.3d 195, 199 (2008). Rule 33.1 of the Arkansas Rules of Criminal Procedure states in relevant part:

(a) In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence. A motion for ...

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