Taylor v. State, CR–15–229

• Decision Date: 24 May 2017
• Docket Number: No. CR–15–229,CR–15–229
• Citation: 522 S.W.3d 844
• Parties: Kenyon Wayne TAYLOR, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

522 S.W.3d 844

Kenyon Wayne TAYLOR, Appellant

v.STATE of Arkansas, Appellee

No. CR–15–229

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered: May 24, 2017

E.J. Reynolds Law Firm, P.A., by: Emily J. Reynolds, for appellant.

Leslie Rutledge, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.

ROBERT J. GLADWIN, Judge

Appellant Kenyon Taylor appeals his conviction by a Garland County jury of one count of murder in the first degree, one count of battery in the first degree, and a firearm enhancement, for which he received an aggregate sentence of fifty-five years' imprisonment in the Arkansas Department of Correction (ADC).¹ He challenges the sufficiency of the evidence supporting his convictions and also alleges that the trial court erred in suppressing evidence of the victim's intoxication. We affirm.

I. Facts

Appellant initially was charged with first-degree murder and criminal attempt to commit first-degree murder; however, at trial, the State timely amended the criminal-attempt charge to battery in the first degree. The evidence at trial indicates that appellant was tried on a theory of accomplice liability—with his brother, Jacorei Thornton, viewed as the alleged principal. At trial, the following evidence was adduced. Juan Manuel Santiago testified that on June 23, 2012, he, along with his friends, victim R.J. Shinkle, and Shinkle's girlfriend, Tammy Hunter, were drinking and hanging out at Shinkle's house. Shinkle called Bryce Lewis and asked him to come hang out with them. Lewis came to Shinkle's house with his girlfriend, Christi Myers, Larell (last name unknown) "Rell," and appellant, who was known as "Too Easy."

While at Shinkle's house, they all went into Shinkle's bedroom where he showed off an antique beer sign that he thought he could sell for eight hundred dollars. Everyone commented about the sign, and Shinkle became angry and slapped appellant. Appellant grabbed Santiago's arm and asked if Shinkle was serious. Santiago said that Shinkle was mad that no one was on his side and told everyone to get out of his house. After everyone had left, Santiago and Shinkle went to a store to get cigarettes. Lewis, who was still with appellant, testified that appellant was angry about having been slapped, and while in the car, he called someone on the phone and kept telling that person to meet him somewhere. Lewis dropped appellant off and went to another friend's house.

Detective Scott Lampinen of the Hot Springs Police Department ("HSPD") testified that cell-phone records confirmed that appellant had called his brother, Thornton, seven times from 11:44 p.m. on June 23 to 12:05 a.m. on June 24. A little after 12:00 a.m., appellant called Lewis from Thornton's phone and told him to tell Shinkle to come outside because he wanted to fight him. Lewis told appellant that he was not going to tell Shinkle that. Lewis tried to call Shinkle but accidentally dialed Hunter, Shinkle's girlfriend, and told her to tell Shinkle to call him. Shinkle called Lewis back, who then told Lewis that appellant was looking for him and wanting to fight; Lewis refused to fight. Appellant called Lewis later, between 2:00 a.m. and 2:30 a.m., from Thornton's phone and said, "Yeah, I handled that." There was not another phone call between appellant and Thornton until 3:17 a.m., after Shinkle had shot and killed.

At some point during that time period, Santiago and Shinkle returned from the store, and when they parked, Santiago saw two black males, one large and one small, on a motorcycle or scooter. Shinkle got out of his truck and went to the front where the two males began shooting. Santiago was shot in the arm and ran toward his house.

Detective Patrick Langley with the HSPD testified that on the night of June 24, 2012, he was dispatched to the scene. Upon his arrival, he observed Shinkle lying in the roadway with blood flowing around his head. Dr. Stephen Erickson, deputy chief medical examiner for the Arkansas State Crime Lab ("ASCL"), testified that Shinkle had been shot with a gun from a very close range of less than one inch and had multiple pistol-whipping-pattern injuries on his head

. Dr. Erickson told investigators about Shinkle's being pistol-whipped repeatedly. Shinkle bled out very quickly and profusely and died soon after being shot. Santiago was shot in the arm and was left with a scar.

Both Shinkle and Santiago had been shot with HPR nine-millimeter bullets, which Rebecca Mullen, from the ASCL firearm and tool-mark section, explained was an uncommon brand. A nine-millimeter gun was found between two couches at Thornton's house loaded with the uncommon HPR nine-millimeter ammunition two days after the murder. A motorcycle was recovered pursuant to a search warrant at Thornton's house, along with clothing that contained particles of gunshot residue. Finally, Tempest Snell testified that appellant and Thornton were discussing someone getting pistol-whipped and "stomped" at Thornton's residence after the crime had occurred. Snell signed a statement two days after Shinkle had been killed stating that appellant and Thornton were talking about pistol-whipping someone who slapped appellant earlier that night.

Defense counsel moved for a directed verdict at the close of the State's case-in-chief. The defense put on no theory or witness but made a renewal of the directed-verdict motion. Both motions were denied by the trial court. The jury convicted appellant on all counts and sentenced appellant to fifty-five years in the ADC. The sentencing order was filed on September 26, 2014, with an amended sentencing order filed on October 2, 2014. Appellant timely appealed the amended sentencing order on October 22, 2014.

II. Sufficiency of the Evidence

A. Standard of Review and Applicable Law

In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Ealy v. State , 2017 Ark. App. 35, 511 S.W.3d 355. We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is 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. On appeal, we consider only the evidence that supports the verdict, viewing the evidence in the light most favorable to the State. Ressler v. State , 2017 Ark. App. 208, 518 S.W.3d 690, 2017 WL 1277423. We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Id. Witness credibility is an issue for the fact-finder, who is free to believe all or a portion of any witness's testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Id.

Substantial evidence can be either direct or circumstantial. Chatmon v. State , 2015 Ark. 28, 467 S.W.3d 731. Direct evidence is evidence that proves a fact without resorting to inference, such as when a witness testifies as to what he saw, heard, or experienced. Id. Circumstantial evidence is evidence from which a fact may be inferred. Id. Evidence of guilt is not less because it is circumstantial. Id. Further, circumstantial evidence may constitute substantial evidence to support a conviction. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311.

In cases in which accomplice liability is implicated, there must be substantial evidence that a defendant acted as an accomplice in the commission of an alleged offense. Green v. State , 2013 Ark. 497, 430 S.W.3d 729. 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, the person solicits, advises, encourages, or coerces the other person to commit the offense or 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). Under the accomplice-liability statute, a defendant may properly be found guilty not only of his own conduct, but also the conduct of his accomplice; when two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Green , 2013 Ark. 497 at 7, 430 S.W.3d at 737. There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id.

Upon review, this court determines whether the jury resorted to speculation and conjecture in reaching its verdict and affirms where the record reveals that substantial evidence sustains the verdict. Sales v. State , 374 Ark. 222, 289 S.W.3d 423 (2008).

B. Procedural Issue

A threshold determination is preservation of a sufficiency challenge. To preserve a sufficiency-of-the-evidence challenge on appeal, a timely, clear, and specific motion for directed verdict must be made to the trial court. Williamson v. State , 2009 Ark. 568, 350 S.W.3d 787 (citing Ark. R. Crim. P. 33.1(c) ). Appellant claims that such a motion was made in this case, and even though not required, a renewed motion was made after appellant had put on no evidence. Despite the State's assertion that appellant's sufficiency argument is barred because he moved generally for a directed verdict but not as to the specific elements of the crimes for which he was convicted, we hold that his motions were sufficiently specific to call to the trial court's attention the alleged defect in the evidence.

Defense counsel stated in his initial motion that nobody saw appellant or his brother at the scene of the murder and likewise noted that there was no physical evidence placing them at the scene. He called to the trial court's attention that the only physical evidence at the scene pointed to a third party who committed the act and who was not appellant or his brother. Finally, he argued that there was no link that put appellant or his brother at the scene of the...