Watkins v. State
| Decision Date | 25 February 2009 |
| Docket Number | No. CA CR 08-445.,CA CR 08-445. |
| Citation | 302 S.W.3d 635,2009 Ark. App. 124 |
| Parties | Kyron Deandre WATKINS, Marcus Terrell Atkins, and Calvin Jemar Perry, Appellants, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Court of Appeals |
Phyllis J. Lemons, Malvern, for appellant.
Dustin McDaniel, Att'y Gen., by: Karen Virginia Wallace, Ass't Att'y Gen., Little Rock, AR, for appellee.
[1]
On August 29, 2007, appellants were jointly tried before a jury on charges of first-degree battery, kidnapping, and possession of a firearm by certain persons, along with the enhancement offenses of commission of a felony with a firearm and commission of a felony in the presence of a child.1 Prior to the trial, counsel for appellants objected to the trial court's reading the commission-of-a-felony-with-a-firearm and commission-of-a-felony-in-the-presence-of-a-child enhancements to the jury. The trial court overruled the objection. Appellants also moved to sever the felon-in-possession-of-a-firearm charge, and the motion was denied. Watkins and Atkins made an objection to the sentencing enhancements being
[2]
read to the jury prior to trial, which was overruled. During the trial, Perry moved for a mistrial following a question by the prosecutor to a witness, which was denied. At the close of the State's evidence, and again at the close of all of the evidence, counsel for appellants moved for directed verdicts, which were denied. After the verdicts were read, but prior to sentencing, appellants moved to have one of the firearm offenses removed, arguing that being sentenced on both constituted double jeopardy. The trial court denied this motion as well.
The jury found Atkins guilty of first-degree battery. Watkins and Perry were found guilty of second-degree battery. All three appellants were found guilty of kidnapping, being a felon in possession of a firearm, and use of a firearm in the commission of a felony. Perry was also found guilty of commission of a felony in the presence of a child. The jury sentenced Atkins to ten years' imprisonment on the first-degree battery charge. Watkins was sentenced to five years' imprisonment and Perry was sentenced to two years' imprisonment on the second-degree battery charge. All three appellants were sentenced to ten years' imprisonment on the kidnapping charge and five years' imprisonment on the felon-in-possession-of-a-firearm charge. Perry was sentenced to an additional one year of imprisonment on the commission-of-a-felony-in-the-presence-of-a-child charge. The trial court added an additional fifteen years' imprisonment to the sentences of all three appellants for commission of a felony with a firearm and ordered that all of the sentences were to be served consecutively.
[3]
The charges against appellants stemmed from an incident that began on April 28, 2006. According to the alleged victim, Jason Bobo, he went to Watkins's home, where he met Perry and Atkins for the first time. When Watkins arrived at the home, he accused Bobo of being involved in an earlier burglary of the home. Bobo testified that, at that point, all three appellants pointed guns at him. Appellants then ordered Bobo to remove his clothes and bound him with his shoelaces. Bobo was then placed in a bathtub where, according to his testimony, appellants beat him with their hands and guns, kicked him, poured hot water on him, poured chemicals on him, forced him to drink an unknown substance, and burned him with a lighter and lit cigarettes. Bobo testified that the incident continued until the next day, when he was able to escape to a relative's home and contact the police.
Preservation of Watkins's and Atkins's right against double jeopardy requires that we consider their challenges to the sufficiency of the evidence before we consider alleged trial error. Grillot v. State, 353 Ark. 294, 303, 107 S.W.3d 136, 141 (2003). Watkins and Atkins both argue on appeal that the trial court erred in denying their motions for directed verdict. This court treats a motion for directed verdict as a challenge to the sufficiency of the evidence, and will affirm a trial court's denial of the motion if there is substantial evidence, either direct or circumstantial to support the jury's verdict. Coggin v. State, 356 Ark. 424, 431, 156 S.W.3d 712, 716 (2004). Substantial evidence is defined as evidence forceful
[4]
enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Id.
Both appellants argue that the State did not produce substantial evidence that they were the ones who kidnapped and injured Bobo. They both state in their briefs that the only substantial evidence submitted by the State was the testimony of Bobo, which they characterize as "exaggerated and inconsistent." Notwithstanding appellants' characterization of the testimony, we find that Bobo's testimony stands as substantial evidence to support the jury's verdict. Our supreme court has held that the uncorroborated testimony of one state's witness can be sufficient to sustain a conviction. Gray v. State, 318 Ark. 601, 602, 888 S.W.2d 302, 303 (1994) (citing Davis v. State, 284 Ark. 557, 683 S.W.2d 926 (1985)). In Gray, an undercover agent and a confidential informant testified against the defendant. The supreme court stated that even if the jury had not believed the undercover agent's testimony, the testimony of the confidential informant alone would have been sufficient to support the defendant's conviction. Id.
Likewise, in this case, Bobo's testimony, if believed by the jury, would be sufficient to satisfy all of the statutory requirements for the offenses for which appellants were found guilty. Bobo specifically identified appellants as the ones who committed the acts to which he testified. In addition, Bobo testified that both Watkins and Atkins were present and pointing guns at him while he was forced to undress and was bound. He also testified that
[5]
both Watkins and Atkins caused injury to him while he was in the home. Given this testimony, the jury was not forced to speculate as to whom Bobo claimed kidnapped and injured him or as to whether the alleged acts occurred. Appellants' arguments are without merit.
Watkins and Atkins argue on appeal that it was error for the trial court to allow them to be tried on both felon-in-possession-of-a-firearm and commission-of-a-felony-with-a-firearm charges. They argue that a trial on both charges amounts to double jeopardy. We previously considered and rejected a similar argument in Davis v. State, 93 Ark.App. 443, 220 S.W.3d 248 (2005).
In Davis, the defendant argued on appeal that his convictions on charges of felon in possession of a firearm and commission of a felony with a firearm violated the double jeopardy clause of the United States Constitution. This court interpreted the supreme court's decision in Williams v. State, 364 Ark. 203, 217 S.W.3d 817 (2005), to mean that when the commission-of-a-felony-with-a-firearm charge is used to enhance a defendant's sentence, the double jeopardy clause is not offended. 93 Ark.App. at 447, 220 S.W.3d at 250. Therefore, it was not error for the trial court to decline to dismiss one of the firearm charges.
[6]
All three appellants argue that the trial court erred by denying their motions for a mistrial. During the State's questioning of Perry, the prosecutor asked the following question: Appellants argue that the prosecutor's implication that Perry sold drugs required the granting of a mistrial.
A mistrial is an extreme and drastic remedy that will be resorted to only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when the fundamental fairness of the trial has been manifestly affected. Harrison v. State, 371 Ark. 652, 269 S.W.3d 321 (2007). A circuit court has wide discretion in granting or denying a mistrial motion, and absent an abuse of that discretion, the circuit court's decision will not be disturbed on appeal. Id.
As an initial matter, only Perry made the motion for a mistrial; the other appellants did not join in the motion. It is well established that we will not consider an argument for the first time on appeal. Hutcherson v. State, 74 Ark.App. 72, 77, 47 S.W.3d 267, 271 (2001). Therefore, Perry is the only one who can now raise the issue on appeal. We do not find error in the trial court's denial of Perry's motion for a mistrial. Immediately following the question by the prosecutor, the parties went into chambers, and the judge strongly warned the prosecutor against making any future similar statements. Back in court, the trial court admonished the jury to disregard the prosecutor's statement. There was other evidence introduced at trial, including Bobo's testimony and Perry's own testimony,
[7]
indicating that Perry had a history of being involved with drugs. Therefore, any potential prejudice from the prosecutor's statement was properly remedied by the trial court.
All three appellants argue that the trial court erred in imposing the sentence on the enhancement offense of commission of a felony with a firearm instead of having the jury fix the punishment. The State argues that appellants failed to preserve the issue for appeal. We can find no evidence in the record that the appellants' argument was raised below. Prior to the trial, the following exchange took place between the trial court, counsel for Perry, and the prosecuting attorney:
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Watkins v. State
...(Repl.2006), and the court ordered all of the sentences to run consecutively. The Arkansas Court of Appeals affirmed. Watkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635. Appellant timely filed in the trial court a petition for postconviction relief under Arkansas Rule of Criminal Procedur......
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Atkins v. State
... ... On appeal from the Rule 37.1 order, we held that appellant had not demonstrated that his attorney was remiss, noting that one of appellant's codefendants, Kyron Watkins, had raised the same issue in his Rule 37.1 petition and we had affirmed the order denying relief in Watkins v. State, 2010 Ark. 156, 362 S.W.3d 910 (per curiam). Atkins, 2011 Ark. 398. Moreover, even if the issue had not already been raised under Rule 37.1, section 1690111 does not provide a means ... ...
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Perry v. State
...sentences to be served consecutively for a total of 396 months in prison. The Arkansas Court of Appeals affirmed. See Watkins v. State, 2009 Ark. App. 124, 302 S.W.3d 635. Although appellant and his codefendants challenged the trial court's decision to set the sentences for the firearm enha......
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