Vann v. State

2018 Ark. App. 601

566 S.W.3d 170

Rodrick VANN, Jr., Appellant

v.STATE of Arkansas, Appellee

No. CR-18-578

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered: December 12, 2018

Joseph C. Self, Fort Smith, for appellant.

Leslie Rutledge, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

RITA W. GRUBER, Chief Judge

The issue on appeal in this case is whether the State presented sufficient evidence to corroborate accomplice testimony connecting appellant Rodrick Vann with the commission of aggravated robbery. A Miller County Circuit Court jury convicted appellant of aggravated robbery and sentenced him to forty years' imprisonment. We hold there was not substantial evidence to corroborate the accomplice testimony, and we reverse appellant's conviction.

Appellant's sole point on appeal is that the circuit court erred in denying his motion for directed verdict on the basis of insufficient corroboration of the accomplice testimony. He argues that the corroborating evidence was not sufficient to establish either that a crime occurred or that he was involved. Before we analyze the testimony, we set forth the standard of review and relevant law.

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Meadows v. State , 2012 Ark. 57, at 5, 386 S.W.3d 470, 474. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Williams v. State , 2011 Ark. 432, at 4, 385 S.W.3d 157, 160.

Arkansas law provides that a person cannot be convicted based on the testimony of an accomplice "unless [the testimony is] corroborated by other evidence tending to connect the defendant ... with the commission of the offense." Ark. Code Ann. § 16-89-111(e)(1)(A) (Supp. 2017). Corroboration must be evidence of a substantive nature, since it must be directed toward proving the connection of the accused with the crime, and not directed toward corroborating the accomplice's testimony. Meadows , 2012 Ark. 57, at 6, 386 S.W.3d at 474. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Ark. Code Ann. § 16-89-111(e)(1)(B). The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the remaining evidence independently establishes the crime and tends to connect the accused with its commission. MacKool v. State , 365 Ark. 416, 430, 231 S.W.3d 676, 688 (2006).

Appellant was convicted of aggravated robbery for his role in the robbery of Burnice Pickens at gunpoint on November 25, 2016. Pickens did not testify. The State presented the testimony of seven Texarkana Police Department officers and one accomplice, Kiona Easter. Officer Joshua Jones testified first. He said that he responded to a call that Pickens had been robbed at the Motel 6. Officer Jones testified that Pickens appeared "very upset" when Jones arrived at the motel and that "his eyes were wide, bug-eyed, almost like he had just seen something and something traumatizing almost happened to him." When the State asked Officer Jones to "recount" what Pickens had told him that night, appellant objected on the basis of hearsay and the Confrontation Clause. After allowing the State to lay a proper foundation, the circuit court found that a foundation had been laid to present the hearsay as an excited utterance, but it suspended the testimony for a later discussion regarding the Confrontation Clause.

The State then presented the testimony of alleged accomplice Kiona Easter, who testified in exchange for her guilty plea to robbery and a sentence of ten years' probation. She said that on November 25, 2016, she sneaked out of her parents' home after messaging with appellant, whom she had met that day on Facebook. Appellant picked her up and took her to the Ambassador Hotel in Texarkana, Arkansas. She said they watched television and appellant took a shower before his friends, Master Leal and Phillip Cornell, arrived. Eventually, appellant took Easter to Fox Creek Apartments, where they met with Leal, Cornell, and Kevonte Smith. Easter said that appellant began talking about how pretty she was and how easy it would be for her to "set somebody up." She said that appellant used her phone, made a couple of calls, and texted for a while. After appellant returned her phone, she saw texts on her phone to Burnice Pickens, whom she did not know. Easter then began getting messages from Pickens, asking where she was so that he could come and get her. Appellant told her to go with Pickens and that they would come and get her later. She said she did not want to go, but appellant assured her that nothing would happen to her.

Easter testified that Pickens picked her up from Fox Creek Apartments and took her to the Motel 6. She said that appellant did not really "tell her the plan," but told her to talk to Pickens and they would come and get her. She said that at some point, "other people" showed up at the hotel room and appellant texted her that they were almost there. He told her to open the door, which she did. When she opened the door, she saw three masked men running toward the room with guns. She said one had a "mini-shotgun," one had a pistol, and the other had a handgun. She testified that appellant told her to "run" and then told Pickens to "put his hands up." Easter ran, and then she heard whistling, turned around, and saw the three men—appellant, Leal, and Smith—running in a different direction. She followed them back to Fox Creek Apartments, where the men changed clothes. She said they mentioned that they had taken Pickens's phone, keys, and forty dollars. She said they listened to a description of the event on a police scanner and laughed. She said appellant mentioned that he "got rid of" Pickens's keys so he could not go anywhere, and he demonstrated with the gun what he had done to Pickens.

The State then called five police officers from the Texarkana Police Department. Officer Zachary White of the Criminal Investigation Division testified first. He said that he became involved in the case the morning after the incident. He helped identify Easter and met with her at her residence. He obtained an arrest warrant for appellant based on information from Easter.

Officer Shane Kirkland testified that he became involved several days after the incident and obtained information that appellant was involved from Easter's statement. He also said that Master Leal had "implicated" appellant. He testified that the police recovered a BB gun and a sawed-off shotgun described by Easter in the possession of Kevonte Smith at Fox Creek Apartments. Finally, he testified that a confidential informant had "led to the arrest" of appellant and had said that appellant "was staying" at Fox Creek Apartments, but Officer Kirkland admitted that he never discovered appellant at Fox Creek Apartments. He said ...