Tucker v. State

• Decision Date: 07 April 2011
• Docket Number: No. CR 10–919.,CR 10–919.
• Citation: 381 S.W.3d 1,2011 Ark. 144
• Parties: Vann TUCKER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

2011 Ark. 144

381 S.W.3d 1

Vann TUCKER, Appellant,

v.STATE of Arkansas, Appellee.

No. CR 10–919.

Supreme Court of Arkansas.

April 7, 2011.

Laws & Murdoch, P.A., by: Hugh R. Laws, Russellville, for appellant.

Dustin McDaniel, Att'y Gen., by: Kathryn Henry, Ass't Att'y Gen., for appellee.

DONALD L. CORBIN, Justice.

Appellant Vann Tucker appeals from the judgment and commitment order finding him guilty of one count each of aggravated residential burglary and aggravated robbery and sentencing him to two life terms in the Arkansas Department of Correction. For reversal, he asserts that the circuit court (1) abused its discretion in failing to grant his motions for mistrial; (2) abused its discretion in failing to grant his motion for change of venue; and (3) erred in failing to grant his motion for directed verdict where there was no sufficient evidence corroborating the accomplices' testimony. Our jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(2) (2010). We find no error and affirm.

The record reflects the following facts. On May 4, 2009, Tacara Wolfe, Appellant's accomplice, contacted her boyfriend, Chris Duvall, to ask if she could borrow his red Toyota Tacoma truck so that she could go look for a job. Duvall drove to Russellville to bring the truck to Wolfe, who was with Appellant and Wolfe's sister, Nicole Myers, Appellant's other accomplice. The foursome went to get some lunch and then dropped Duvall back at his house. Appellant, Wolfe, and Myers then went to the home of Myers's friend, Rocky Maggard. Myers introduced Appellant and Maggard and later overheard Maggard tell Appellant that someone owed him money. Then, Maggard asked Myers to go to his neighbor Billy Partain's house to see if anyone was home. He further instructed Myers to knock on the door, and if someone answered the door, she was to tell that person that her truck had run out of gas. According to Myers, if no one was home, the plan was to break into the house to steal money and guns.

Myers and Wolfe then went to Partain's house and knocked on the door. Once Partain opened the door, the women asked if they could use his phone to make a call because their truck had run out of gas. While talking with Partain, Myers noticed a shadow across the back of the house and Appellant, wearing a ski mask, came in. Myers and Wolfe went outside. Wolfe left on foot through some nearby woods, while Myers went back into the house where Appellant and Partain were on the floor scuffling. Partain was begging for his life, and Appellant told him no one would get hurt if he would stop squirming. Appellant ordered Myers to go to a bedroom to get some guns. She came back with three shotguns and a pistol. Myers put all the guns, along with a pair of binoculars and some shotgun shells, in a blue blanket, and she and Appellant left and returned through a field to Maggard's house.

Appellant, Myers, Wolfe, and Maggard then drove to Ronnie Ray's house, an acquaintance of Myers's, to sell him the stolen guns. Appellant decided to keep the pistol and sold Ray the three shotguns for approximately seventy dollars. Later, Appellant, Myers, and Wolfe met up at Myers's roommate's house in Russellville.

Once the police were notified of the robbery, they were dispatched to Partain's house to investigate. Partain identified Myers as being in his house immediately prior to the robbery. Myers and Wolfe were subsequently arrested and both implicated Appellant in the crimes, leading to his arrest and conviction as set forth previously. This appeal followed.

I. Sufficiency of the Evidence

Although raised as his third argument on appeal, we must first consider Appellant's argument that the circuit court erred in failing to grant his motion for directed verdict because of double-jeopardy concerns. See Sweet v. State, 2011 Ark. 20, 370 S.W.3d 510. Specifically, Appellant asserts that the only evidence that places him at the scene of the crime is the testimony of his accomplices, and in the absence of any corroborating evidence if the accomplice evidence is excluded, then there is insufficient evidence supporting his convictions, particularly where there was no physical evidence linking him to the crimes. The State counters that this argument is without merit, as sufficient corroborating evidence was presented.

We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Taylor v. State, 2011 Ark. 10, 370 S.W.3d 503. In reviewing a challenge to the sufficiency of the evidence, this court views the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Id. Substantial evidence is that evidence 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.

When accomplice testimony is considered in reaching a verdict, Arkansas law provides that a person cannot be convicted based upon the testimony of an accomplice “unless corroborated by other evidence tending to connect the defendant ... with the commission of the offense.” Ark.Code Ann. § 16–89–111(e)(1)(A) (Repl.2005). Furthermore, “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) (Repl.2005). It must be evidence of a substantive nature since it must be directed toward proving the connection of the accused with a crime and not toward corroborating the accomplice testimony. Taylor, 2011 Ark. 10, 370 S.W.3d 503;Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008). The corroborating evidence need not be sufficient standing alone to sustain the conviction, but it must, independent from that of the accomplice, tend to connect to a substantial degree the accused with the commission of the crime. Stephenson, 373 Ark. 134, 282 S.W.3d 772. The test is whether, if the testimony of the accomplice is completely eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Taylor, 2011 Ark. 10, 370 S.W.3d 503. The corroborating evidence may be circumstantial as long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice's testimony. Id. In addition, if an accomplice's testimony is corroborated as to some particular fact or facts, the jury is authorized to infer that he speaks the truth as to all. Id.;Bennett v. State, 284 Ark. 87, 679 S.W.2d 202 (1984).

Arkansas Code Annotated section 5–12–103(a) (Repl.2006), states that a person commits aggravated robbery if he or she commits a robbery as defined in Arkansas Code Annotated section 5–12–102 (Repl.2006), and the person:

(1) Is armed with a deadly weapon;

(2) Represents by word or conduct that he or she is armed with a deadly weapon; or

(3) Inflicts or attempts to inflict death or serious physical injury upon another person.

Arkansas Code Annotated section 5–39–204(a) (Supp.2009) provides that a person commits aggravated residential burglary if he or she commits residential burglary as defined in Arkansas Code Annotated section 5–39–201 (Supp.2009) of a residential occupiable structure occupied by any person, and he or she:

(1) Is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon; or

(2) Inflicts or attempts to inflict death or serious physical injury upon another person.

In the instant case, Myers testified that she was with her sister, Wolfe; Wolfe's boyfriend, Chris Duvall; and Appellant on May 4, 2009. She stated that the foursome, who were in Duvall's red Toyota Tacoma truck, had lunch and then dropped Duvall at his house in Atkins before going to Rocky Maggard's house. Myers stated that after introducing Maggard and Appellant, she overheard Maggard telling Appellant that someone owed him money. Maggard told Myers to go to Partain's home to see if anyone was there, and if so to tell the person her car had run out of gas. Myers stated that while inside Partain's house, she saw Appellant, wearing a ski mask, come in the back of the house. She and Wolfe went outside and, while Wolfe left on foot back through the woods to Maggard's house, Myers went back in and found Appellant scuffling with Partain and that Appellant was trying to tie up Partain with some phone cord. At one point, Myers saw Appellant hold a knife to Partain's throat. She stated that Appellant told her to go to the bedroom to look for guns. She came back out with three shotguns and a pistol. She testified that she put the guns, along with shotgun shells and a pair of binoculars in a blue blanket, and she and Appellant left. First, they got into a small, black pickup truck, but after Appellant was unable to drive a stick shift, he turned the truck around and parked it back in a shed next to Partain's house. Myers stated that after she and Appellant returned to Maggard's house, they got Wolfe and Maggard and went to Ronnie Ray's house to sell the guns. Myers further stated that after leaving Ray's and dropping off Appellant and Maggard, she and Wolfe again met up with Appellant at the home of Layla Kendrick, Myers's roommate.

Wolfe testified similarly to Myers that after having lunch with her boyfriend, Duvall, and borrowing his truck, she, Appellant, and Myers went to Maggard's house. Wolfe stated that she heard Maggard talking about having previously done some work for Partain and noticing that he had a lot of cash. She stated that she went with her sister to Partain's house but left after seeing a shadow move across a back window. She then went back through the woods and was sitting in the truck when Maggard came out of the house and asked her, “Did you get it?” She later saw Myers and Appellant come through the field and noticed Appellant carrying a blue blanket. Wolfe also stated that the foursome went to Ray's house...