Porter v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: ROBERT J. GLADWIN
• Citation: Porter v. State, 2010 Ark. App. 657, 379 S.W.3d 528 (Ark. App. 2010)
• Decision Date: 06 October 2010
• Docket Number: No. CA CR 10–86.,CA CR 10–86.
• Parties: Josh PORTER, Appellant v. STATE of Arkansas, Appellee.

2010 Ark. App. 657

379 S.W.3d 528

Josh PORTER, Appellant

v.STATE of Arkansas, Appellee.

No. CA CR 10–86.

Court of Appeals of Arkansas.

Oct. 6, 2010.

Francis Parker Jones III, Dyer and Jones, Benton, for appellant.

Dustin McDaniel, Atty. Gen., Kathryn Henry, Asst. Atty. Gen., Little Rock, for appellee.

ROBERT J. GLADWIN, Judge.

[Ark. App. 1]Appellant Josh Porter appeals his conviction by a Howard County Circuit Court on a charge of first-degree battery, for which he was sentenced, with a habitual-offender enhancement, to 192 months in the Arkansas Department of Correction. Appellant challenges the sufficiency of the evidence supporting the conviction and argues that the circuit court erred in denying his motion to suppress two statements he made to officers. We affirm.

Facts

On March 12, 2008, at approximately 9:40 p.m., appellant, his co-defendant Wayne Lee, and another man, referred to as “Zoe,” were driven by Lee's brother, Daniel Thermion, a/k/a “Big Rab,” and dropped off behind an E–Z Mart near the home of Everett Davis, [Ark. App. 2]where Tracy Evans was staying. There is conflicting evidence as to whether Lee or appellant wanted to initiate a fight with Evans, but all three were present and armed with guns.

When the three men approached Davis's residence, one of the men knocked on the door. Davis opened the door, saw a silhouette outside that he did not recognize, and quickly shut the door. One of the men outside commanded him to open the door, and when he did not do so, multiple shots were fired. Davis was shot twice through the door and sustained serious injuries to his left knee and eye, but he did not see who shot him. Appellant claims that, as soon as the shooting started, he ran from the residence to the nearby train tracks, where he threw away his mask and gun, and that after the shooting ended, Lee and Zoe quickly followed.

Appellant later learned that the police were looking for him in connection with the shooting and voluntarily went to the sheriff's department on March 20, 2008, to meet with investigators. Investigators arrested appellant at that time and took a statement from him on that date, as well another statement on March 24, 2008. Before trial, appellant moved to suppress the two statements, but the motion was denied.

At the bench trial held on September 22, 2009, the State presented testimony from Davis, Bobby Crawford, who heard shots and saw the three individuals running from the area, Officer Kyle Jones, Big Rab, Lee, Howard County Deputy Sheriff Randy Bone, Investigator Larry Marion, Investigator David Shelton, and Ronald Anderjack—a firearms-tool-mark examiner with the Arkansas State Crime Laboratory. Appellant's counsel moved for a [Ark. App. 3]directed verdict upon the State resting, arguing that the State had failed to meet its burden of proving that appellant was an accomplice to first-degree battery in the shooting of Davis; that motion was denied. No additional evidence was taken, but counsel renewed the motion, which was again denied. The circuit court found appellant guilty and sentenced him as previously set forth. The judgment and commitment order was filed on October 9, 2009, and appellant filed a timely notice of appeal on October 30, 2009.

I. Sufficiency of the Evidence

(A) Standard of Review

When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. White v. State, 98 Ark. App. 366, 255 S.W.3d 881 (2007). Only evidence supporting the verdict will be considered. Id. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Graham v. State, 365 Ark. 274, 229 S.W.3d 30 (2006). 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. Credibility determinations are made by the trier of fact, which is free to believe the prosecution's version of events rather than the defendant's. See Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001).

When a theory of accomplice liability is implicated, substantial evidence must exist that the defendant acted as an accomplice in the commission of the alleged offense. See [Ark. App. 4]Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Wilson v. State, 365 Ark. 664, 232 S.W.3d 455 (2006).

(B) Discussion

A person commits first-degree battery 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 deadly weapon.” Ark.Code Ann. § 5–13–201(a)(1) (Repl.2006). Appellant's criminal liability was based upon his status as an accomplice. A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense he solicits, advises, encourages, or coerces another person to commit it; or aids, agrees to aid, or attempts to aid another person in planning or committing it. Ark.Code Ann. § 5–2–403(a) (Repl.2006).

When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). The relevant factors in determining the connection of an accomplice to a crime are the presence of the accused in proximity of a crime, the opportunity to commit the crime, and an association with a person involved in a manner suggestive of joint participation. Clem v. State, 351 Ark. 112, 90 S.W.3d 428 (2002). A defendant is an accomplice so long as he renders the requisite aid or encouragement to the principal irrespective of whether he directly commits the crime. Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). A felony conviction based, in part, on accomplice testimony cannot be [Ark. App. 5]upheld unless that testimony is corroborated by other evidence. Ark.Code Ann. § 16–89–111(e)(1)(A) (Repl.2005); Davis v. State, 310 Ark. 582, 839 S.W.2d 182 (1992). Though it need not be sufficient to convict the defendant, that evidence must independently establish the crime and tend to connect the defendant to the commission of it. Id. Furthermore, accomplice testimony may be corroborated by a confession, which certainly connects the admitting defendant to the crime. See Bell v. State, 258 Ark. 976, 530 S.W.2d 662 (1975).

Appellant argues that the State failed to prove beyond a reasonable doubt that he either participated in the crime or had knowledge of the extent of the crime about to occur. He notes that the State relied heavily on testimony from his co-defendant, Lee, and urges that Lee's testimony was not corroborated. Because Lee was presented as an accomplice, Arkansas law requires that his testimony be corroborated to support the conviction. SeeArk.Code Ann. § 16–89–111(e)(1)(A).

As stated above, in order to be “substantial,” evidence must do more than merely raise a suspicion of guilt. See Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996). It must also be sufficient on its own to establish the commission of the crime and connect the defendant to it. Id. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Henderson v. State, 337 Ark. 518, 990 S.W.2d 530 (1999).

[Ark. App. 6]In the instant case, appellant maintains that, not only was there insufficient evidence overall to prove his guilt, there was a lack of corroborating evidence to support Lee's testimony. Appellant maintains that the testimony offered by Big Rab and Lee was unreliable at best, with Big Rab admitting that he had lied to officers in his statements and Lee admitting that he had been promised leniency in return for his testimony.

We disagree and hold that the State presented sufficient evidence to support the conviction. Lee testified at trial that appellant told him that he wanted to go fight Tracy Evans as a result of an incident over a dice game, as opposed to appellant's contention that Lee wanted to initiate the fight. Lee stated that appellant wanted Lee to “back him up” and told Lee that they needed to bring guns, just in case Evans started shooting at them. Lee testified that his brother, Big Rab, took him and appellant to a Wal–Mart store and that, while there, Lee bought two camouflage ski masks. His story was that Big Rab then dropped off Lee, appellant, and Zoe near the house where Evans and Davis lived and that all three men approached the back door of the house while wearing masks and holding guns. Lee testified that appellant knocked on the door, and Davis opened the door and quickly shut it. Lee explained that he, appellant, and Zoe then each drew their guns and began shooting at the house. Then they took off running toward the train tracks and threw down their masks.

Apart from Lee's testimony, additional evidence linked appellant to the first-degree battery. Davis testified that, around 10:00 p.m. on March 12, 2008, he awoke to someone knocking at his door. He opened the door slightly, and a man outside tried to push it open. [Ark. App. 7]Davis shut and bolted the door, after which seven or eight gun shots were fired into the house. A bullet hit him in the left knee and another grazed his eye.

Crawford, who was working near Davis's house that night, testified that he saw three individuals come around the side of the house and open fire. After the shooting, Crawford saw the three men run across the yard and down to the railroad tracks, although he could not identify them because they wore dark clothing and masks. Crawford acknowledged that one of the men ran about ten feet ahead of the other two, but he recalled that none of the three ran away during the actual shooting.

Officer Jones responded when he heard the gunshots. After...