Tommy Ray Sevier, Jr. v. State of Arkansas
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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
PER CURIAM
DIVISIONS I AND II
CACR061404
January 30, 2008
TOMMY RAY SEVIER, JR.
APPELLANT
APPEAL FROM THE MILLER
COUNTY CIRCUIT COURT [NO. CR
20052071]
V.
HON. JOE E. GRIFFIN, JUDGE
SUBSTITUTED OPINION ON DENIAL
OF REHEARING; AFFIRMED
STATE OF ARKANSAS
APPELLEE
The appellant, Tommy Ray Sevier, Jr., was convicted at a jury trial of arson, two
counts of abuse of a corpse, and two counts of hindering apprehension. He was found to be
a habitual offender and sentenced to a cumulative term of eightysix years’ imprisonment.
On appeal, he argues that the trial court erred in denying his motion for directed verdicts, in
denying his motion for a new trial on the grounds of juror misconduct, and in admitting
certain evidence. We affirm.
An argument contesting the denial of a directed verdict is a challenge to the
sufficiency of the evidence and, as such, must be addressed before discussion of trial error.
Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984). The test for determining the
sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct
or circumstantial. Price v. State, 365 Ark. 25, 198 S.W.3d 561 (2006). Evidence is
substantial if it is of sufficient force and character to compel reasonable minds to reach a
conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence
in the light most favorable to the State, considering only that evidence that supports the
verdict. Id.
In order to prove that appellant committed arson as charged, the State was required
to show that appellant started a fire with the purpose of destroying or damaging a motor
vehicle belonging to another person. Ark. Code Ann. § 538301(a)(1)(A) (Repl. 2006).
Proving abuse of a corpse required the State to show that appellant physically mistreated a
corpse in a manner offensive to a person of reasonable sensibilities. Ark. Code Ann. §
560101(a)(2) (Repl. 2005). A showing of hindering apprehension required proof that
appellant purposely concealed, altered, destroyed, or otherwise suppressed the discovery of
any evidence related to the crime that might aid in the discovery, apprehension, or
identification of the perpetrator. Ark. Code Ann. § 554105(a)(4) (Repl. 2005).
The issue of sufficiency of corroboration is central to appellant’s argument that the
evidence was insubstantial. A conviction cannot be had in any case of felony upon the
testimony of an accomplice unless corroborated by other evidence tending to connect the
defendant with the commission of the offense. Ark. Code Ann. §1689111 (e)(1)(A) (Repl.
2005). The corroboration must be sufficient standing alone to establish the commission of
the offense and to connect the defendant with it. Hogue v. State, 323 Ark. 515, 915 S.W.2d
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276 (1996). The corroborative evidence must be substantial evidence, which is stronger
evidence than that which merely raises a suspicion of guilt; circumstantial evidence qualifies
as corroborating evidence but it, too, must be substantial. Id. But corroboration need not
be so substantial in and of itself to sustain a conviction. Id.
The accomplice testimony was given by Charles Hutchinson. Hutchinson testified
that he and appellant’s sister killed the two victims at the sister’s house. Hutchinson testified
that, afterward, appellant’s sister telephoned appellant repeatedly. Appellant’s wife arrived
soon afterward driving appellant’s truck. A vehicle belonging to one of the victims was at
the scene. The bodies were lying on the ground under a cover. Hutchinson and others then
took the firearms used in the killings into the house. After appellant’s wife was told what
had happened, she telephoned appellant, telling him that they had a “severe situation.” The
persons at the scene then got into appellant’s truck and drove to meet appellant at his trailer
house. Upon arriving, Hutchinson told appellant about the killings. Appellant, his wife, and
his sister withdrew a short distance and conferred with one another. Appellant telephoned
his father. His father arrived at appellant’s trailer, talked to appellant, appellant’s wife, and
appellant’s sister, and then left. The others put two tires into the back of appellant’s pickup
truck and went to buy diesel fuel, filling two bottles. They proceeded to appellant’s sister’s
house, where the killings had occurred. Appellant and his sister placed the bodies into the
back seat of the victim’s car, covering them with the tires brought from appellant’s home.
Appellant and his wife then got in appellant’s truck, and appellant told Hutchinson to follow
him in the victim’s car. Appellant’s sister accompanied Hutchinson in the car. Appellant
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drove to a little road, pushed the gate out of the way with his truck, and told Hutchinson to
drive down the little road. Hutchinson did so until he came to a small clearing, where
appellant’s sister told him to stop. After Hutchinson got out of the victim’s car, appellant
poured the diesel fuel into the victim’s car and set it on fire. Appellant then drove the party
to an automotive shop owned by appellant’s father, put appellant’s truck in the shop, and
chained the shop door shut.
We hold that there is substantial corroborating evidence to establish that the crimes
were committed and that appellant was connected to them. There was evidence that a hunter
found a gate knocked down on land he leased. At a camp area less than half a mile from the
gate, he saw a burned car sitting in the roadway, still smoking. He approached and saw a
skull in the back seat of the burned car. He called 911 and, when police arrived, it was
discovered that there were skeletal remains of two bodies in the back seat of the burned car.
A subsequent forensic examination showed that both of the victims had suffered fatal
gunshot wounds to the head. Expert testimony placed appellant’s truck at the scene of the
fire, based upon tireprint analysis, and showed that appellant’s truck was used to batter
down the gate, based upon comparison of paint traces and reconstruction of a shattered bulb
using pieces found both at the gate and at the shop near appellant’s truck. There was, in
addition, nonaccomplice witness testimony to show that appellant attempted to conceal the
damage to his vehicle by seeking immediate repair and by removing the distinctive tires that
had made the tracks, and that he asked about the shortest route to the Louisiana state line
from the area where the car was burned. Attempts to conceal a crime or to escape are
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sufficient evidence to support an inference of guilt. Wyles v. State, 368 Ark. 646, ___
S.W.3d ___ (2007).
Appellant also asserts that the evidence is insufficient to prove arson because there
was no evidence to establish that the value of the vehicle destroyed in the fire had been at
least $2,500. We do not agree. Appellant is correct that Ark. Code Ann. § 538301(b)
classifies the arson offense on the basis of the value of the property damaged or destroyed.
However, there was adequate evidence of value presented by the mother of one of the
victims, who testified that she had bought the 1994 Nissan Sentra three years beforehand for
$4,250; that she had recently expended approximately $1,000 for repair and upkeep of the
vehicle; and that its value was not less than $2,000 at the time it was destroyed. Testimony
of the purchase price of property may be substantial evidence of market value if the purchase
date is not too remote in time and the purchase price bears a reasonable relation to the
present value. Jones v. State, 290 Ark. 113, 717 S.W.2d 200 (1986). Given the age of the
car at the time of purchase and the relatively short time between its purchase and destruction,
we cannot say that this was not substantial evidence of value. Compare Tillman v. State, 271
Ark. 552, 609 S.W.2d 340 (1980).
In the course of his sufficiency argument, appellant also argues that the trial court
erred in admitting hearsay testimony regarding appellant’s involvement in the crimes in the
form of a statement by a police officer that he had learned of appellant’s involvement in the
crimes through discussions with other police officers investigating the case. We find no
error. Appellant opened the door to this question by asking about the officer’s knowledge
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“from the investigation” without specifying whether the knowledge was personal or through
others, and therefore could not be prejudiced by this testimony. Harmon v. State, 340 Ark.
18, 8 S.W.3d 472 (2000).
Finally, we note that appellant also argues that the trial court erred in denying his
motion for a new trial based on juror misconduct consisting of a juror allegedly seen sleeping
during the trial. This issue, which was raised below only in the newtrial motion, is not
properly before us. The judgment of conviction was entered on June 6, 2006. Appellant
timely filed his motion for a new trial on June 29. See Ark. R. Crim. P. 33.3(b). He filed
his notice of appeal from the conviction on July 28. The motion for a new trial was denied
1
by an order entered on Monday, July 31. Because the notice of appeal was filed prior to
entry of the order denying the motion for a new trial, and because no new or amended notice
of appeal was filed after entry of the order, the notice was ineffective to appeal the denial of
the posttrial motion. Ark. R. App. P. – Crim. 2(b)(2). Additionally, the content of the
notice of appeal was insufficient to effect an appeal of the denial of the motion for a new
trial. The only order designated in the notice of appeal as being appealed from is the
judgment of conviction; the denial of the newtrial motion is not designated or in any way
mentioned in the notice. See Ark. R. App. P. – Crim. 2(a)(4); Daniel v. State, 64 Ark. App.
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A trial court is given thirty days in which to act on a posttrial motion. Ark. R.
App. P. – Crim. 2(b)(1). Because the thirtieth day after appellant’s newtrial motion fell
on a Saturday and the trial court’s order was entered on the first business day thereafter,
the order was timely. Ark. R. App. P. – Crim. 17.
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98, 983 S.W.2d 146 (1998); Arkansas Department of Human Services v. Shipman, 25 Ark.
App. 247, 756 S.W.2d 930 (1988).
Affirmed.
ROBBINS, BIRD, GLOVER, HEFFLEY, and BAKER, JJ., agree.
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