Derrick Harris v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

KAREN R. BAKER, JUDGE

DIVISION III

DERRICK HARRIS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-796

JANUARY 9, 2002

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR1999-2559]

HONORABLE WILLARD PROCTOR JR., CIRCUIT JUDGE

REVERSED AND DISMISSED

Appellant, Derrick Harris, was convicted of two counts of kidnapping following a bench trial in Pulaski County and sentenced to ten years' imprisonment in the Arkansas Department of Correction. Appellant's sole point on appeal is that the evidence presented by the State was insufficient to sustain the conviction. We agree and reverse and dismiss.

The victims, Kerry Robinson and Shamekia Grimes, were visiting friends in Conway when Kerry received a page from James Nichols. In response to the page, Kerry and Shamekia drove to Little Rock and met James Nichols, Mike Williams, and appellant at an apartment complex. The three men asked Kerry to give them a ride to the Waffle House. After all three were seated in Kerry's back seat, Kerry decided there were too many people in his car and took appellant to his sister's car. Appellant then followed the others to the Waffle House in his sister's car. When they arrived at the Waffle House, appellant pulled into a parking space next to Kerry's car.

Kerry testified that James attempted to get into the driver's seat of his car, resulting in a scuffle between the two. Mike then got out of the other side of the car, walked around the car, and

hit Kerry over the head with a pistol. James and Mike then put Kerry in the trunk of his car. Kerry testified that at the time he was involved in the scuffle with James and Mike, he could not see appellant. Then, with Shamekia in the passenger compartment and Kerry in the trunk, James and Mike drove to a field in Kerry's car. At the field, they removed Kerry from the trunk, took his jewelry and money, poured gasoline on him, and set him on fire. Kerry testified that he had no recollection of appellant being at the field.

Shamekia Grimes testified that appellant followed Kerry's car to Waffle House and that he got out of his car and went toward the back of Kerry's car, while James and Mike put Kerry in the trunk. However, she did not see appellant hit Kerry or assist the others in putting him in the trunk. Shamekia testified that after James and Mike put Kerry in the trunk, appellant got back into his sister's car, and she did not see appellant again. She also testified that, "they said Kerry had something to do with [appellant's cousin's] death."

At the close of the State's case, appellant's counsel made a motion for a directed verdict based on the lack of evidence that appellant was an accomplice to the kidnapping, and renewed his motion at the close of all the evidence. Both motions were denied. This appeal followed.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001) (citing Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999)). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and that passes beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id. It is important to note that the court will make no distinction between circumstantial and direct evidence when reviewing for sufficiency of the evidence. Serav. State, 341 Ark. 415, 17 S.W.3d 61 (2000). However, for circumstantial evidence to be sufficient, it must exclude every other reasonable hypothesis consistent with innocence. Id. Whether the evidence excludes every hypothesis is left to the jury to determine. Id. (citing Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999)).

Appellant argues that the trial court erred when it found him guilty of kidnapping because the evidence presented by the State was insufficient to sustain the conviction. We agree. A person commits kidnapping when he restrains another person, without consent, so as to interfere substantially with his liberty with the purpose of inflicting physical injury upon him, or terrorizing him or another person. Ark. Code Ann. § 5-11-102 (a)(4) & (5) (Repl. 1997). Further,

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: (1) Solicits, advises, encourages, or coerces the other person to commit it, or (2) Aids, agrees to aid, or attempts to aid the other person in planning or committing it.

Ark. Code Ann. § 5-2-403 (Repl. 1997). Each accomplice is criminally liable for the conduct of the others. Pack v. State, 73 Ark. App. 123, 41 S.W.3d 409 (2001).

In this case, the State failed to meet its burden of proving that appellant was an accomplice. Testimony showed that Kerry and Shamekia responded to a page that Kerry had gotten from James by meeting appellant, James, and Mike in Little Rock. After the meeting, appellant followed Kerry's car to the Waffle House. At the Waffle House, appellant pulled his car into the space adjacent to Kerry's. Appellant went to the back of Kerry's car; however, there was no evidence that appellant aided, agreed to aid, or attempted to aid James and Mike when they put Kerry in the trunk. There was also no evidence that appellant solicited, advised, encouraged, or coerced James or Mike in the kidnapping. After Kerry was placed in the trunk, appellant got back in his sister's car and was not seen or heard from again for the rest of the evening. Although Shamekia stated that, "they saidKerry had something to do with [appellant's cousin's] death," she never identified who made this statement. We hold that this testimony provided an insufficient basis to support the trial court's finding that there was a discussion of motive for the kidnapping.

Under these facts, there was insufficient evidence to sustain a conviction for appellant as an accomplice. Our supreme court has held that mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, or failure to inform officers of the law, is not sufficient to make one an accomplice. See Scherrer v. State, 294 Ark. 227, 742 S.W.2d 877 (1998) (citing Spears v. State, 280 Ark. 577, 660 S.W.2d 913 (1983)). Because we find that the basis for appellant's conviction could not have passed beyond speculation and conjecture, we must reverse and dismiss.

Reversed and dismissed.

Bird and Crabtree, JJ., agree.