McKisick v. State

2022 Ark. App. 426

653 S.W.3d 839

Tyler MCKISICK, Appellant

v.STATE of Arkansas, Appellee

No. CR-22-90

Court of Appeals of Arkansas, DIVISION II.

Opinion Delivered October 26, 2022

Terrence Cain, Little Rock, for appellant.

Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge

Tyler McKisick appeals the sentencing order entered by the Garland County Circuit Court following his conviction by a jury of one count of fleeing in a vehicle in violation of Arkansas Code Annotated section 5-54-125(d)(2) (Supp. 2021), one count of possession of fewer than four ounces of a Schedule VI controlled substance in violation of Arkansas Code Annotated section 5-64-419(b)(5)(A) (Supp. 2021), three counts of carrying a handgun for the purpose of attempting to unlawfully deploy it in violation of Arkansas Code Annotated section 5-73-120(a) (Supp. 2021), and one count of fleeing on foot in violation of Arkansas Code Annotated section 5-54-125(c). On appeal, McKisick challenges the sufficiency of the evidence presented against him. We affirm.

On October 3, 2017, at approximately 3:00 p.m., Officer Matthew Ellis of the Garland County Sheriff's Office observed a vehicle briefly stop at a house on Edwards Place in Hot Springs. McKisick was a passenger in that vehicle. The driver and owner of the vehicle, Demetrius Holmes, and McKisick got out of the vehicle and went into the house. Holmes and McKisick quickly returned to the vehicle and drove away. Holmes was driving, and McKisick rode in the passenger seat. Officer Ellis testified that he followed Holmes's vehicle because there was an outstanding felony warrant for McKisick.

It was raining heavily, and Holmes did not have his headlights on, so Officer Ellis activated the lights on his police vehicle in order to initiate a traffic stop. Instead of pulling over, however, Holmes led Officer Ellis on a high-speed chase, reaching speeds between seventy and eighty miles an hour. Officer Ellis pursued Holmes for almost five miles before Holmes stopped his vehicle and got out. McKisick also exited the vehicle, but instead of obeying Officer Ellis's commands, McKisick ran into a nearby wooded area. After securing Holmes, Officer Ellis pursued McKisick on foot. Officer Ellis testified that he did not maintain visual contact with McKisick during the chase nor did he see McKisick toss any items or have anything in his hands other than a jacket.

After chasing McKisick for approximately four minutes, Officer Ellis cornered him in a dead-end alley near the back of a gas station. Officer Ellis ordered McKisick to come out and show his hands, and McKisick complied. Following McKisick's arrest, law enforcement officers searched the alley and found three handguns that belonged to Holmes. They also found a small pill bottle containing marijuana. The next day, law enforcement officers searched the wooded area where McKisick fled, and they found another pill bottle containing marijuana.

McKisick's case went to trial before a jury in July 2021. At trial, the State introduced a portion of a tape-recorded conversation of McKisick describing to a third person the events that took place the night of October 3, 2017, when Officer Ellis attempted to stop McKisick and Holmes. McKisick described how Holmes was driving the car, and when they became aware a police officer was attempting to initiate a stop, Holmes "hit the gas," and McKisick told Holmes to "go faster."

Holmes, who was declared by the circuit court to be a hostile witness after he admitted at the trial that he did not want to testify against McKisick because "snitches get stitches," testified that McKisick simply told him to "go." Holmes also testified that McKisick's directive to "go" had no effect on his actions and that he took it upon himself to elude the police. Holmes also testified that, when the men fled from police, it was because they knew the consequences for having guns and drugs in the car. Holmes testified that there was marijuana in the armrest of the vehicle and guns under a seat, that both were accessible to McKisick, and that McKisick was aware that both were there. Holmes also testified that, when Officer Ellis initiated the stop, Holmes and McKisick were smoking marijuana. Holmes testified that, when McKisick exited the vehicle and fled on foot, he took the guns with him. Holmes said he "guessed" that McKisick also took the marijuana. Holmes identified the marijuana found at the scene as his.

The jury found McKisick guilty of one count of fleeing in a vehicle, one count of possession of less than four ounces of a Schedule VI controlled substance, three counts of carrying a handgun for the purpose of attempting to unlawfully deploy it, and one count of fleeing on foot. The circuit court accepted the jury's sentencing recommendations and sentenced McKisick to a total of six years’ imprisonment and a fine of $3,000. This timely appeal followed.

When reviewing a challenge to the sufficiency of the evidence, we must assess the evidence in the light most favorable to the State and only consider the evidence that supports the verdict. Gillard v. State , 366 Ark. 217, 221, 234 S.W.3d 310, 313 (2006) (citing Tillman v. State , 364 Ark. 143, 146, 217 S.W.3d 773, 774–75 (2005) ). A conviction will be affirmed if substantial evidence exists in the record to support it, which is 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. Tillman , 364 Ark. at 146, 217 S.W.3d at 775 (citing Stone v. State , 348 Ark. 661, 666–67, 74 S.W.3d 591, 594 (2002) ). Circumstantial evidence may provide a basis to support a conviction if it is consistent with the defendant's guilt and is inconsistent with any other reasonable conclusion. Id. (citing Edmond v. State , 351 Ark. 495, 502, 95 S.W.3d 789, 793 (2003) ). Whether the evidence excludes every other reasonable conclusion is a matter for the fact-finder to decide. Id. (citing Carmichael v. State , 340 Ark. 598, 602, 12 S.W.3d 225, 227 (2000) ). Witness credibility is also an issue for the fact-finder, which can believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. at 146, 217 S.W.3d at 775 (citing Burley v. State , 348 Ark. 422, 429, 73 S.W.3d 600, 605 (2002) ).

McKisick challenges the circuit court's denial of his motion for directed verdict regarding his conviction for fleeing in a vehicle. Arkansas Code Annotated section 5-54-125(a) provides that "[i]f a person knows that his or her immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of the person to refrain from fleeing, either on foot or by means of any vehicle or conveyance." Fleeing by means of any vehicle or conveyance is considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person. Ark. Code Ann. § 5-54-125(d)(2). A person can be criminally liable for the conduct of another person if he is an accomplice of the other person in the commission of an offense. Ark. Code Ann. § 5-2-402(2) (Repl. 2013). A person is an accomplice of another person in the commission of an offense if he has the purpose of promoting or facilitating the commission of an offense and he solicits, advises, encourages, or coerces the other person to commit the offense, or he aids, agrees to aid, or attempts to aid the other person in planning or committing the offense. Ark. Code Ann. § 5-2-403(a)(1), (2) (Repl. 2013).

McKisick argues that the State failed to present evidence that he took any actions that encouraged Holmes's flight or otherwise promoted or facilitated the flight. This argument is unpersuasive. McKisick was recorded describing the events that took place when Officer Ellis attempted to stop the vehicle, and in his own words, he stated that he told Holmes to "go faster." Holmes testified that McKisick told him to "go." Holmes also acknowledged that he and McKisick were fleeing because they knew the consequences of being pulled over with drugs and guns in the car. McKisick's intention to promote or encourage Holmes's...