FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-14-711]
HONORABLE MARCIA R. HEARNSBERGER, JUDGE
Hancock Law Firm, by: Sharon Kiel, for appellant.
Rutledge, Att'y Gen., by: Ashley Priest, Ass't
Att'y Gen., for appellee.
W. GRUBER, Chief Judge.
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
Sufficiency of the Evidence
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.
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. §
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).
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.
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.
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.
courtroom, Tops identified West as "Slim." Tops
explained various discrepancies in his initial statement at
the sheriff's office, later statements, and court
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.
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.
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
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.
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
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.
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.
moved for a directed verdict at the close of the State's
case, arguing that no objective witnesses had placed him at
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