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West v. State

Court of Appeals of Arkansas, Division I

September 6, 2017



          Hancock Law Firm, by: Sharon Kiel, for appellant.

          Leslie Rutledge, Att'y Gen., by: Ashley Priest, Ass't Att'y Gen., for appellee.


          RITA W. GRUBER, Chief Judge.

         James Elijah West was charged with aggravated robbery and first-degree battery for acts committed against Alexander Oliver on October 25, 2014, in the Mountain Pine, Arkansas, house that Oliver shared with his aunt and Virgil Mitchell. West was convicted as charged and was sentenced as a habitual offender to consecutive terms of 180 months' imprisonment. He appeals from the April 20, 2016 sentencing order, contending (1) that there was insufficient evidence to support his convictions and (2) that the trial court erred when it denied his motions to have the jury instructed that two of the witnesses were accomplices as a matter of law. We affirm.

         I. Sufficiency of the Evidence

         West first contends that the trial court erred by denying his motions for directed verdict because there was insufficient evidence that he was a principal or an accomplice to either the robbery or the battery. He notes that accomplice testimony is not sufficient corroboration of another accomplice's testimony and that he was not identified by the victims as a perpetrator. He argues that all witnesses who testified about his participation were interested in the case's outcome and hoped to lessen any harsh consequences for their own involvement. He argues that because Philemon "Casey" Tops, Mahogany Aalseth, and Brendan Campbell were "interested parties who had admitted liability" or had been "somehow involved in aiding those liable, " their testimony linking him to the scene should be disregarded. He argues that a cell phone, which allegedly belonged to him, was the only evidence linking him to the crime scene but that there was "no corroboration" regarding the phone and that Tops could have brought it there.

         Robbery is committed if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, a person employs or threatens to immediately employ physical force upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2013). Aggravated robbery occurs if the person committing the robbery 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. Ark. Code Ann. § 5-12-103(a). A person commits battery in the first degree if, with the purpose of causing serious physical injury to another person, the person causes serious physical injury to any person by means of a firearm. Ark. Code Ann. § 5-13-201(a)(8).

         A directed-verdict motion is a challenge to the sufficiency of the evidence. When the sufficiency of the evidence is challenged in a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and only the evidence supporting the verdict is considered. Lovelace v. State, 2017 Ark.App. 146, at 6, 516 S.W.3d 300, 304. We will affirm if the verdict is supported by substantial evidence-evidence 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. Weighing the evidence, reconciling conflicts in the testimony, and assessing credibility are matters exclusively for the trier of fact-in this case, the jury. Id. The jury may accept or reject any part of a witness's testimony. Id. Inconsistent testimony does not render proof insufficient as a matter of law, and one eyewitness's testimony is sufficient to sustain a conviction. Harmon v. State, 340 Ark. 18, 25, 8 S.W.3d 472, 476 (2000).

         At West's trial, there were numerous inconsistencies within the testimony of single witnesses and in their collective testimony about various persons' roles in the crimes. Tops, Aalseth, and Campbell, however, all testified that Aalseth drove West, Tops, and Campbell-as well as her friend Vicki-in Aalseth's car some six miles to Mountain Pine and that she let the three men out at the house.

         Tops testified that he went with West and Campbell to Oliver's house to buy marijuana; that Aalseth drove; that Vicki was in the front seat; that Campbell gave directions; and that West had a backpack in the backseat. West, Campbell, and Tops got out at the house, and the females parked down the road while the three men went to Oliver's door and went inside.

         Tops testified that he entered the home with West and Campbell to buy marijuana. Pulling a handgun on Oliver and an older man (Mitchell), West told Oliver to show him where the weed was. Tops followed West's instructions to search the house and put things into a black backpack that West had brought. Campbell accompanied Tops. While searching the bedroom for marijuana, Tops grabbed a pair of shoes and put them into the backpack. He then heard a gunshot, ran out the back door with Campbell and West, and asked what happened. West responded, "I shot 'em." Tops ran down the road to a church parking lot, where he was shot at. He jumped into a "trash can" to hide, but "a couple of guys" found him and pistol-whipped him. Campbell, who continued walking, ignored Tops's cry for help. Tops was taken back to the crime scene, was arrested, and was transported to the sheriff's office-where he talked with Investigator Kenny Ford.

         In the courtroom, Tops identified West as "Slim." Tops explained various discrepancies in his initial statement at the sheriff's office, later statements, and court testimony:

I told [Ford] all of the names of the people involved. . . . When I talked to Detective Ford that day I did not tell him the entire truth about what had happened because I did not want to get into trouble. At a later point in time I signed a letter stating that James West was not the shooter. I said that Brendan was the shooter in that letter. That was not the truth. I made that statement because I was threatened. I retracted that statement the same day by writing another letter saying that Brendan was not the shooter. I gave it to an officer at the jail. Everything that I have testified today is the truth and whole truth.

         He denied making threats in Oliver's living room to shoot the "older" man, and he said that any testimony by Oliver or Mitchell about the involvement of two black males and no white male (Campbell) would have been a lie.

         Aalseth testified that she was charged with aggravated robbery but was released from jail after agreeing to testify truthfully. She testified that she knew nothing of a drug deal when Tops asked if she would drive "somewhere" six minutes away and that she agreed to drive in exchange for gas money. She testified that she never asked what the men were planning to do, that Vicki and she stayed in the car and played with their phones while waiting nearby, and that she drove away when they heard gunshots and saw people running out of the house.

         Campbell was a juvenile on October 25, 2014, and was not charged with a criminal offense. He testified that he was walking to his ex-girlfriend's house on October 25 when Tops, his friend and neighbor, asked him if he knew where Tops could buy marijuana. When Campbell replied that he "had a friend who went to this guy in Mountain Pine, " Tops said he would take Campbell to the ex-girlfriend's house if he "could get [Tops] some weed." Shortly afterward, Tops and Campbell were picked up in a car that Aalseth was driving. Another female was sitting in the front, and a tall, skinny black man whom Campbell had never met was in the back, holding a backpack. Campbell later learned that the man, called "Slim" at the time, was West.

         Campbell further testified that, once in the car, he gave directions to the house in Mountain Pine. Along the way, something that "felt like a gun" was jammed into his rib cage. West told him that if he wanted to live, he should do what West said. When they arrived at the house, West told him to "get the f___ out of the car" and "quit being a pussy." Campbell stayed in the yard when West and Tops went up to the porch. West knocked on the door; kept telling Oliver, "I need some weed"; pulled out a gun; "slammed him in the house"; and ordered him to "get the f___ on the ground." West told Campbell to get inside. Campbell hesitated but walked up to the porch and began opening the screen door. He heard a gunshot and "ran off through the yard" toward the main road. He heard yelling and more gunshots, saw a man he didn't know kicking a "trash can, " saw Tops's head "pop up" from the trash can, and saw the man beat Tops's head with a pistol. Tops asked Campbell for help, but Campbell kept walking-trying "to get out of there." At the sheriff's office, Investigator Ford showed him a six-person photo lineup. He picked West's photo.

         Oliver and Mitchell testified about details of the battery and robbery. Oliver testified that two men came to the house asking to buy marijuana, that he would not sell or give them any, and that they followed him into the living room where Mitchell was watching television. Oliver and Mitchell testified that the man who was tall and skinny had a gun; that Oliver and Mitchell were ordered to lie on the floor; that the second man told the armed man to shoot the old one (Mitchell) first; and that Oliver was shot in the stomach when he grabbed for the gun.

         Oliver also testified that the armed man had worn a backpack, which Oliver identified at trial as the one Investigator Ford had taken as evidence the day of the crimes. Oliver identified a pair of Nike shoes and a box of shotgun shells, which had been found in the backpack, as belonging to him and having been in the house before the two men entered. Investigator Ford testified that the backpack was located away from the residence; that he found the Nikes inside the backpack when he made an initial, brief search; that when he "revisited" the backpack months later, he discovered a cell phone in its front pocket; and that he obtained a search warrant for the cell phone. Tops testified about text messages and photos that had been extracted from the phone pursuant to the search warrant. He testified that he and West had texted about setting up apartment robberies prior to October 25, that they "did not actually complete any of those robberies, " and that the texts did not discuss anything about October 25. Tops identified West and his girlfriend in photos retrieved from the phone.

         West moved for a directed verdict at the close of the State's case, arguing that no objective witnesses had placed him at the scene:

All the testimony placing Mr. West at the scene comes from . . . Mr. Tops, who-. . . based on his being charged-is automatically deemed an accomplice in fact, as opposed to one ...

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