Javon Sanders v. State of Arkansas

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ar04-899

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JAVON SANDERS

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR04-899

March 16, 2005

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[NO. CR 02-2656]

HONORABLE TIMOTHY DAVIS FOX, CIRCUIT JUDGE

AFFIRMED

Josephine Linker Hart, Judge

The circuit court found appellant Javon Sanders guilty of residential burglary and theft of property and sentenced him to two consecutive five-year terms. On appeal, he argues that the court erred in concluding that he failed to prove the affirmative offense of duress. We affirm.

At the bench trial, the State submitted evidence that the Little Rock residence of Mike Parsley was burglarized on March 8, 2001, and numerous items were taken from the residence. During the course of investigating the burglary, Sergeant Doug Cunningham of the Pulaski County Sheriff's Department interviewed Cory Perkins, who told him that appellant was involved in the burglary at this residence. Cunningham interviewed appellant, and appellant's recorded statement was introduced into evidence.

In his statement, appellant admitted to being with Perkins during the course of the burglary. According to appellant, Perkins came over to appellant's apartment, and he asked appellant to drive around with him and smoke marijuana. Appellant agreed, and, while Perkins was driving, appellant saw a pistol slide out from underneath Perkins's seat. Appellant stated that, at that point, he knew Perkins "was geeked up off the drugs."

According to appellant, Perkins pulled up to a residence, said, "I'm fixing to hit this house, "and told appellant to get out of the car. Appellant stated that at first he was not going to get out of the car, and he told Perkins to take him back home. Perkins said, "No. Come on, man. Come on." Appellant said that "at the time I'm thinking, you know, I'm looking at this pistol, and I'm looking at him and his size. Yeah, I could wrestle with him, but what if he get out on me to a point where he'd shoot me for not going in the house with him." Perkins took the gun with him, and he told appellant to climb over the fence. When appellant said he was not going to do so, Perkins said, "Yes, you is. Come on, man."

Appellant said that he climbed over the fence with Perkins. As they were walking to the residence, appellant started to slow down because he was "going to turn and run." Perkins, however, would also slow down or stop and wait for him, telling him to "[c]ome on." When they arrived at the front door, Perkins knocked on the door and rang the door bell several times. Perkins also went around to the side of the house several times while appellant remained standing there. Perkins kicked in the door, and they both entered the house. Appellant said that he refused to shut the door when asked by Perkins, and he told Perkins that he would not touch anything and did not want to be there. Perkins then searched the house and told appellant to search a room. Appellant said that at first, he did not move, and he knew at that time Perkins was high or was "fenning" for crack cocaine. Perkins gave appellant items to carry to the car, including guns. Appellant made three or four trips to the car.

After they loaded the car, appellant told Perkins to take him home, and Perkins did so. Perkins mentioned that they could "go get some more," but appellant said, "You got to shoot me or do whatever you want to do, but take me back to the house ... because if I come up dead or something come up wrong with me, my wife know I'm with you." Perkins then took appellant back home. When they arrived, appellant did not allow Perkins to bring the items into the house, but he did allow him to use the telephone to call "Terrell" to exchange the items for drugs and money. Perkins received $400 as well as seven grams of crack cocaine, and appellant received $100.

Appellant also said that he did not know beforehand that Perkins intended to burglarize the residence, and if he had known, he would not have left his own residence. He thought that they would smoke a "blunt" and "just ride and kick it, you know, go holler at some females.... We was going to chill just to have fun, just do the male thing." He stated that when they arrived at the residence, he did not have any other choice but to go with him, as Perkins was large and had a pistol. Otherwise, Perkins would have shot him, as Perkins was "high" and hard to control.

Following the introduction of appellant's statement, the State rested, and upon denial of appellant's motion for a directed verdict, appellant took the stand. Appellant testified that he "didn't really think nothing of it" when Perkins's pistol slid out from underneath his seat, as he knew Perkins carried a pistol. Appellant further testified that, when they arrived at the residence, Perkins forced him under a gate. He testified that there was "a strong possibility" he would be shot trying to wrestle with Perkins. He also stated that he would never have gone with Perkins had he known they would burglarize the residence. He also said that he did not know Perkins "was on crack cocaine until the detectives told me." Instead, he knew only that Perkins smoked marijuana.

On cross-examination, appellant testified that Perkins threatened him with the gun, that Perkins forced him under the gate by using the pistol, that Perkins pulled and pointed a gun at him when they entered the residence, and that he tried to leave. He further statedthat he did not leave when Perkins walked around to the side of the house because Perkins returned before he could do so and because Perkins could still see him from the side of the house. He also stated that he could not have left when he was carrying guns out of the residence because Perkins was walking behind him. Further, he testified that he did not call the police because he was afraid to report it and that he took the $100 because Perkins forced him to take it. He also admitted that he was a convicted felon. On redirect, he stated that Perkins could have shot him if he left; that if Perkins wanted to get at him he knew where appellant lived and worked and where his wife went to school; and that he took the money to get out of the situation safely. On recross, appellant admitted that he did not report the incident to police and that he never mentioned in his statement that Perkins said threatening words to him.

At the conclusion of the trial, appellant's counsel renewed his motion for a directed verdict and argued that appellant committed the crimes because he was acting under duress. Counsel stated that there was "credible" testimony from appellant that he thought Perkins would use the gun if he did not cooperate in the burglary; that Perkins knew appellant's wife and children; that appellant could not run for fear of getting shot; and that he was not in a position to inform the police about the crimes because of concerns about his and his family's personal safety.

The court, however, found that there was "no credibility" to appellant's testimony. The court noted that when Perkins wanted to burglarize other houses, all appellant had to do was ask Perkins to take him home and Perkins took him home. Further, the court noted that appellant allowed Perkins to make a call from his house to fence the property and that appellant accepted money out of the proceeds. The court also observed that appellant's statement and trial testimony differed regarding appellant's knowledge of Perkins's use of cocaine as well as whether appellant was forced to crawl over a fence or under a gate. The court concluded, "And I find no credibility in the defendant's testimony, so the affirmative defense is denied." The court found appellant guilty of both counts.

On appeal, appellant contends that he proved the affirmative offense of duress. Our statute setting out the defense of duress provides in part that "[i]t is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that a person of ordinary firmness in the actor's situation would not have resisted." Ark. Code Ann. § 5-2-208(a) (Repl. 1997). A defendant "must prove an `affirmative defense' by a preponderance of the evidence." Ark. Code Ann. § 5-1-111(d) (Repl. 1997).

Appellant acknowledges that the court found that appellant's testimony was not credible and that determinations of credibility are left for the finder of fact. Appellant, however, observes that the court mentioned four specific facts when it found appellant's testimony was not credible. He argues that, even taking into consideration these four adverse factual determinations, there was still a preponderance of evidence establishing the affirmative defense of duress. Appellant asserts that there was other testimony and statements from him that were not commented upon by the court when it rejected appellant's defense: Perkins's possession of a weapon and appellant's lack thereof; Perkins's control of the vehicle; Perkins's use of drugs; appellant's balking at committing the crimes; appellant's choice between wrestling with Perkins while Perkins was "high" on drugs or participating in the burglary; and appellant's ending of his participation after the burglary.

While the court did not specifically repeat and reject everything said by appellant during the giving of his statement and testimony, it is clear from the court's ruling that it did not find credible the entirety of appellant's version of the events. Whether appellant's testimony overcame the State's prima facie case was a question of credibility for the circuit court, and our inquiry on appeal is ended by our deference to the circuit court's finding that appellant's version of the events was not credible. See Johnson v. State, 266 Ark. 514, 587 S.W.2d 3 (1979) (holding that whether the defendant's testimony regarding duress overcame the State's prima facie case was a question of credibility for the trial judge); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979) (holding that the finder of fact is not required to accept the defendant's testimony as uncontradicted).

Affirmed.

Vaught and Crabtree, JJ., agree.