Kendrick Mitchell Wilson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

KENDRICK MITCHELL WILSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-398

February 6, 2002

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DIVISION

[NO. CR-2000-626C]

HON. JAMES R. MARSCHEWSKI,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with first-degree battery resulting from an incident in which two pedestrians exchanged gunfire with the driver of a vehicle, and an innocent bystander was struck by a bullet. Appellant was alleged to have been one of the pedestrians. Both pedestrians and the driver were charged with first-degree battery arising out of this incident, and all parties agreed at trial that all three of the defendants were accomplices. At his jury trial, appellant moved for a directed verdict on the ground that the evidence was insufficient to corroborate the testimony of the driver that implicated appellant in the shooting. The trial judge denied the motion, ruling that the question of corroboration was a fact question for the jury. The jury returned a verdict of guilty, and appellant was

sentenced to ten years in the Arkansas Department of Correction. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in denying his motion for a directed verdict because the accomplice testimony of the driver was not sufficiently corroborated. In addition, he argues that the inconsistent verdicts rendered by the jury with respect to appellant and the other pedestrian shooter demonstrate that the jury took improper factors into consideration in determining appellant's guilt. We affirm.

Appellant first contends that the trial court erred in denying his directed-verdict motion because the accomplice testimony of the driver was not sufficiently corroborated. We do not reach this issue because the issue of accomplice corroboration was never presented to the jury. In a similar case, our supreme court said that the issue of corroboration was not preserved for appeal where the defendant failed to request that accomplice instructions, including the instruction on the necessity of corroboration, be submitted to the jury for consideration. Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). Here, although the issue of corroboration was contested at trial and the trial court expressly ruled that the sufficiency of the corroboration was a question for the jury, appellant failed to request that the jury be instructed on the need for accomplice testimony to be corroborated. Because appellant failed to meet his burden of obtaining such an instruction, this issue has not been preserved for our consideration. Id.

Appellant next contends that the inconsistent verdicts rendered by the jury with respect to appellant and the other pedestrian shooter demonstrate that the jury took improperfactors into consideration in determining appellant's guilt. We do not agree. "Inconsistency" is generally understood to mean some logical impossibility or improbability implicit in the jury's findings as between jointly charged defendants. Young v. State, 296 Ark. 394, 757 S.W.2d 544 (1988). Here, the two verdicts are capable of reconciliation. Appellant was positively identified as having been seen near the crime scene on the day in question by a disinterested witness, while his co-defendant was not so identified. Furthermore, there was evidence that it was appellant, not his co-defendant, who first began shooting. Therefore, the jury could have found that appellant was the more culpable of the two defendants, or simply that the identification of appellant by a non-accomplice was more credible than the identification of his co-defendant by accomplice testimony alone. See id.

Affirmed.

Bird and Roaf, JJ., agree.