Kokie Alandis Thuston v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ca05-186

DIVISION IV

KOKIE ALANDIS THUSTON

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CA 05-186

October 5, 2005

APPEAL FROM THE CONWAY

COUNTY CIRCUIT COURT,

[JV2004-63]

HONORABLE TERRY M. SULLIVAN,

CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

The Conway County Circuit Court adjudicated appellant, Kokie Thuston, delinquent as an accomplice to the crime of theft of property. She was placed on supervised probation for three months, subject to conditions imposed by the court and her probation officer; ordered to pay court costs of $35 and $20 per month in probation fees; ordered to pay a fine of $250, payment of which was suspended; ordered to write a 500-word essay regarding her delinquent offense; and ordered to perform four hours of community service through the "Earn It" program. On appeal, appellant contends that, as a matter of law, she cannot be an accomplice of an adult. She also argues that the elements of the affirmative defense of duress are inherent in charging a child as an accomplice of an adult, and that the trial court erred in failing to find that the affirmative offense of duress existed in this case. We affirm.

Jamie Patrick, an adult, and appellant, who was twelve years old at the time of the offense, were observed by Wal-Mart loss-prevention employee Boyce Burdine taking items off the shelves in Wal-Mart and placing them into a diaper bag they had brought into the store. Burdine testified that both Patrick and appellant were picking up things and putting them into the diaper bag, but that Patrick was doing most of the selecting and that "you could tell she was under control of the situation." He said that appellant did not insert as many items into the diaper bag as Patrick, but that she did help Patrick.

Appellant's mother, Yvette Thuston, testified that Patrick had given her children a ride from Kansas to Arkansas, and that appellant was just showing Patrick where Wal-Mart was located. Ms. Thuston said that when Patrick admitted the shoplifting incident to her, she threw Patrick out of her house.

Appellant testified that she had gone to Wal-Mart with Patrick and Patrick's three young children. She denied knowing that Patrick was shoplifting, but then she testified that she thought Patrick was stealing when she saw Patrick "zipping something." Appellant denied taking anything off of the shelves or helping Patrick conceal any items. She said that she was not focused on Patrick but instead was taking care of the children.

The trial court found the charge of accomplice to theft of property to be true. This appeal followed.

Appellant's arguments are not preserved for appellate review. At the close of all of the evidence, appellant's counsel told the trial judge that he had "a little argument," and he then proceeded to argue that even though the affirmative defense of duress was not raised earlier, it was still applicable because of appellant's age. Counsel also argued that appellant could not as a matter of law be the accomplice of an adult. However, counsel never made a motion to dismiss the charge based upon these points prior to making his closing argument. Arkansas Rules of Criminal Procedure are applicable to delinquency proceedings. Jones v. State, 347 Ark. 409, 64 S.W.3d 728 (2002). In Raymond v. State, 354 Ark. 157, 118 S.W.3d 567 (2003), our supreme court held that, in a bench trial, in order to preserve an argument regarding the sufficiency of the evidence for appellate review, appellant is required to make a motion to dismiss prior to closing arguments. In the present case, because appellant's counsel did not move to dismiss the charge prior to closing argument, Raymond precludes such an argument from now being made to the appellate court.

Nevertheless, even if appellant's arguments had been preserved for appellate review, we would find them to be unavailing. Appellant argues that as a matter of law, she, as a juvenile, cannot be the accomplice of an adult. In support of that assertion, she cites Arkansas Code Annotated section 9-27-303 (14) (A) & (B) (Repl. 2002), which provides:

(14) "Delinquent juvenile" means any juvenile:

(A) Ten (10) years old or older who has committed an act other than a traffic offense or game and fish violation which, if the act had been committed by an adult, would subject the adult to prosecution for a felony, misdemeanor, or violation under the applicable criminal laws of this state or who has violated § 5-73-119; or

(B) Any juvenile charged with capital murder, § 5-10-101, or murder in the first degree, § 5-10-102, subject to extended juvenile jurisdiction.

Contrary to appellant's assertion, this statute does not prevent a juvenile from being charged as an accomplice of an adult. A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense. Swinford v. State, 85 Ark. App. 326, 154 S.W.3d 262 (2004). A criminal defendant is an accomplice where the defendant renders the requisite aid or encouragement to the principal with regard to the offense at issue. Id. Appellant makes no further argument on this point, and assignments of error, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. E.g., Lancaster v. State, 81 Ark. App. 427, 105 S.W.3d 365 (2003).

Appellant also argues that the affirmative defense of duress is inherent when a juvenile is charged as an accomplice of an adult. Arkansas Code Annotated section 5-2-208(a) (Repl. 1997) provides:

It 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.

In the present case, there was simply no evidence that appellant acted in the manner in which she did because she was compelled to do so by the threat or use of unlawful force. A defendant's age does not raise the affirmative defense of duress, and therefore, this defense is not applicable under this particular set of facts.

Affirmed.

Pittman, C.J., and Gladwin, J., agree.