Burciaga v. State

690 S.W.3d 456

2024 Ark. App. 341

Andrea BURCIAGA, Appellant

v.STATE of Arkansas, Appellee

No. CR-23-687

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered May 29, 2024

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26CR-21-800], HONORABLE RALPH C. OHM, JUDGE

Sharon Kiel, Little Rock, for appellant.

Tim Griffin, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.

BART F. VIRDEN, Judge

₁A Garland County jury convicted appellant Andrea Burciaga of aggravated robbery, kidnapping, aggravated assault, and misdemeanor theft of property. She was sentenced as a habitual offender to an aggregate term of ninety-five years’ imprisonment. Burciaga argues that the trial court abused its discretion in declaring the victim "unavailable" under Ark. R. Evid. 804 and in permitting the State to introduce at trial a transcript of the victim’s testimony from Burciaga’s probation-revocation hearing. Burciaga also argues that there was insufficient evidence to show that she was an accomplice to the crimes. We find no error and affirm Burciaga’s convictions.

I. Background

₂Burciaga’s jury trial began on July 10, 2023. After selecting and swearing in a jury, the trial court addressed the fact that the State’s "star witness," Amber Franklin, had not appeared that morning for trial. The State requested that Franklin be declared unavailable and that her testimony from Burciaga’s probation-revocation hearing held March 30, 2023, be admitted. The trial court held a hearing in chambers at which the following witnesses testified: Tralene Harris, victim-witness coordinator at the Garland County Prosecuting Attorney’s Office (GCPAO); Larry Sanders, an investigator with the GCPAO; Detective Mark Fallis with the Hot Springs Police Department; and GCPAO Deputy Prosecuting Attorneys Brock Price and Caitlin Bornhoft.

Harris testified that she had had regular contact with Franklin since 2021 when the charges were filed against Burciaga and the codefendants. She had contacted Franklin by phone, text, and email a. dozen times in 2023 and said that Franklin had always responded and that she had always appeared as requested at the prosecuting attorney’s office and at court. Detective Fallis testified that he had likewise always been able to reach Franklin by calling or texting her.

Harris further testified that Franklin preferred to have subpoenas emailed to her. She said that on April 28, she sent Franklin an email with two subpoenas attached for probation-revocation hearings and that Franklin had acknowledged receiving those. Shortly afterward on the same day, Harris emailed Franklin a copy of the subpoena to appear at Burciaga’s jury trial, but Franklin did not acknowledge having received it. Harris testified that Franklin did, however, appear at a meeting with the prosecutors on June 27, 2023, to prepare for the trial.

₃Harris testified that she had called Franklin the morning of the trial but that Franklin’s phone was no longer in service. Investigator Sanders testified that he had been trying to locate Franklin that morning. He had gone to three addresses for her and had sent Facebook messages to both Franklin and her boyfriend.

Bornhoft and Price testified that they were aware that interested parties had in the past tried to persuade Franklin not to cooperate with police but that Franklin had always appeared for meetings and honored subpoenas. They testified that Franklin had told them at the June 27 meeting that there had been no recent attempts to prevent her from testifying. Investigator Sanders testified that, while he was attempting to locate Franklin that morning, he noticed a stop sign near one of the addresses with the words "talking to cops" written under the word "STOP." The trial court ruled that Franklin was unavailable and that her testimony from Burciaga’s probation-revocation hearing could be read to the jury.

The trial then began, and the following was gleaned from the testimony and exhibits. Burciaga and Franklin were friends. When Burciaga went to prison, she had asked Franklin to store some of her possessions, including clothing, a television, and a box of the cremated remains of a man named Rick. When Burciaga was released from prison, she and Franklin had a falling out. Burciaga sent a friend to collect her belongings from Franklin. Burciaga did not get all of the items back, including Rick’s ashes, or "cremains." Burciaga later claimed in an interview that it appeared as though Franklin had simply gathered some trash from around her apartment and handed that to Burciaga’s friend. On September 22, 2021, at 5:18 a.m., Burciaga sent Franklin the following Facebook message:

₄Lol u know me a lot better then most and u think that I’m ok with that bullshit u sent me fuck u bitch it’s fuck insulting the shit u sent I swear on my kids bitch y’all better not sleep to fucking sound all I know and fuck it if u do cause I don’t knock And Both u bitches getting pistol whooped so U fuck with right one[.]

Around midnight on September 22, Franklin was leaving her apartment complex when she saw Burciaga’s car parked in front of the apartment of a mutual friend, Sumer Campbell, who lived in the same apartment complex. Campbell told Franklin to come inside. Franklin believed a confrontation with Burciaga was inevitable and wanted to get it over, so she went inside and sat on a couch across from Burciaga with her back to the door. As Franklin and Burciaga were arguing over the cremains, Lilly Repaso entered the apartment and sat beside Burciaga. Shortly afterward, Kaylee "Pineapple" Harris and Cameron Whitworth entered the apartment, and Whitworth immediately struck Franklin on the back of her head with his gun, which caused the gun to discharge. Franklin dropped her cell phone, and Whitworth picked it up and began asking Franklin what she had done with Rick’s ashes.

For nearly two hours, the five people in Campbell’s apartment smoked methamphetamine and continued to question Franklin about the missing ashes. Franklin had been told to get on her knees at one point and was then moved to a metal chair positioned between the couches.

Whitworth asked Burciaga what he should do to Franklin, and Burciaga asked Franklin why she should save her or help her. Whitworth and Hams took turns pointing a gun at Franklin and striking her on her face and the back of her head. Whitworth had a duffle bag full of guns, pulled out a rifle, and then put a plastic drop cloth ₅around the metal chair where Franklin was sitting, saying that he did not want to get blood on the floor. He then shoved the barrel of the rifle down Franklin’s throat and asked her if she was ready to die. Hams took several rings off of Franklin’s fingers and eventually gave them to Burciaga.

Franklin begged Burciaga to allow her to look at her (Burciaga’s) place for Rick’s ashes because she was sure they were in a white trash bag that she had handed to Burciaga’s friend. Burciaga warned Franklin that she would be leaving in a box if they did not find those ashes. Franklin and the five other people got into two vehicles belonging to Burciaga and Repaso, and Harris continued to point the gun at Franklin. They stopped at an E-Z Mart. Whitworth and Repaso began arguing, and Repaso drove off by herself, so Franklin and Harris got into Burciaga’s car with the others and drove to Repaso’s place where Whitworth and Repaso continued arguing. Franklin later said that Burciaga had been worried about having drawn too much attention and about the guns in the car.

Burciaga finally said that she would let Franklin go home but that she had better return Rick’s ashes by 5:00 p.m. that day or "we’re all coming back and it’s gonna be worse." Franklin’s phone was then returned to her, and she was warned that they would kill her family if she went to the police. Burciaga told Franklin that she would get her rings back when Franklin returned the ashes. Later, Franklin saw that Whitworth had used her phone to transfer $25 from her CashApp account to his CashApp account.

On September 23 around 10:00 a.m., Franklin received the following Facebook message from Burciaga:

₆Bitch if u think getting pistol whipped and getting the barrel of a gun shoved down your throat by the 4 of us last night wait and see what we do next. And I promise u this much. If I find out u snitched and talk to the police about anything that happened last night u will be the next box of ashes someone is looking for[.]

Franklin went to the police and gave a statement. That interview with Detective Fallis was played for the jury as well as his subsequent interview with Burciaga. Franklin’s testimony from Burciaga’s probation-revocation hearing was read to the jury. The video footage from the EZ Mart was also played, and still photos from the convenience store were introduced. Photographs were admitted into evidence depicting Franklin’s facial injuries, the interior of Campbell’s apartment, the apartment complex where Franklin and Campbell lived, Whitworth’s duffle bag, and the guns and ammunition. The jury convicted Burciaga of aggravated robbery, kidnapping, aggravated assault, and misdemeanor theft of property.

II. Discussion

A. Sufficiency of the Evidence

[1–4] Although it is her second point on appeal, we address Burciaga’s sufficiency argument first because of double-jeopardy concerns. Badger v. State, 2019 Ark. App. 490, 588 S.W.3d 779. When reviewing a challenge to the sufficiency of the evidence, we must assess the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. McKisick v. State, 2022 Ark. App. 426, 653 S.W.3d 839. Moreover, when reviewing the sufficiency of the evidence, this court considers all of the evidence, whether admitted properly or erroneously. Badger, supra. Even if the trial court abused its discretion in admitting certain evidence, we will nevertheless consider it in determining whether the ₇verdict is supported by substantial evidence. Id. Here, ...