{ "id": 1916688, "name": "Kenneth Scott ANDREWS v. STATE of Arkansas", "name_abbreviation": "Andrews v. State", "decision_date": "1991-04-22", "docket_number": "CR 90-263", "first_page": "262", "last_page": "267", "citations": [ { "type": "official", "cite": "305 Ark. 262" }, { "type": "parallel", "cite": "807 S.W.2d 917" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "273 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719361 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/273/0325-01" ] }, { "cite": "236 Ark. 46", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681406 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/ark/236/0046-01" ] }, { "cite": "289 Ark. 281", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1875357 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/289/0281-01" ] }, { "cite": "771 S.W.2d 16", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1889841, 1888346, 1888363 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/298/0605-01", "/ark/299/0001-01", "/ark/299/0007-01" ] }, { "cite": "299 Ark. 7", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1888363 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/299/0007-01" ] }, { "cite": "303 Ark. 210", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882821 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/303/0210-01" ] }, { "cite": "290 Ark. 495", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873738 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "498" }, { "page": "713-14" } ], "opinion_index": 0, "case_paths": [ "/ark/290/0495-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-89-111", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1987, "pin_cites": [ { "page": "(e)(1)" } ], "opinion_index": 0 }, { "cite": "277 Ark. 137", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1750177 ], "weight": 2, "year": 1982, "opinion_index": 1, "case_paths": [ "/ark/277/0137-01" ] }, { "cite": "280 Ark. 156", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1744814 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/280/0156-01" ] }, { "cite": "279 Ark. 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1746985 ], "weight": 2, "year": 1983, "opinion_index": 1, "case_paths": [ "/ark/279/0435-01" ] }, { "cite": "748 S.W.2d 117", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1893800, 1895710 ], "year": 1988, "pin_cites": [ { "page": "122" } ], "opinion_index": 1, "case_paths": [ "/ark/295/0131-01", "/ark/294/0659-01" ] }, { "cite": "295 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1893800 ], "year": 1988, "pin_cites": [ { "page": "140" } ], "opinion_index": 1, "case_paths": [ "/ark/295/0131-01" ] }, { "cite": "303 Ark. 12", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1882827 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "17" }, { "page": "865" } ], "opinion_index": 1, "case_paths": [ "/ark/303/0012-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-89-111", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1987, "opinion_index": 1 } ], "analysis": { "cardinality": 622, "char_count": 10512, "ocr_confidence": 0.879, "pagerank": { "raw": 4.1809440286534775e-07, "percentile": 0.9125553265846773 }, "sha256": "cdaf6953493a8f2ffc014c0691d80f1f73a02393462e29583b0cb4e72721b91f", "simhash": "1:2b6c8d2cf91cdd00", "word_count": 1812 }, "last_updated": "2023-07-14T19:53:54.224345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., concurs." ], "parties": [ "Kenneth Scott ANDREWS v. STATE of Arkansas" ], "opinions": [ { "text": "David Newbern, Justice.\nThe appellant, Kenneth Scott Andrews, appeals from his conviction of first degree murder for which he received a sentence of 40 years imprisonment. His sole point of appeal is that there was insufficient evidence to convict him. More specifically, he contended in a motion for directed verdict at the conclusion of the State\u2019s evidence that the testimony of an alleged accomplice was not corroborated by independent evidence showing that he was connected with the crime. We affirm the conviction because of Andrews\u2019s failure to renew his directed verdict motion at the conclusion of all of the evidence in the case.\nDanny Jordan testified in great detail about the crime and the participation of Kenneth Scott Andrews (Scott) and Scott\u2019s father, Joe Kenneth Andrews (Joe). Jordan told of helping move a safe from a jewelry store to the home of the victim James Robinson. He told Joe about the safe, and Joe expressed interest in stealing it. At one meeting where Joe, Scott, and Jordan were present, Scott announced that he would get the safe even if the others would not do it. On February 19, 1990, the three went to Dardanelle State Park in Joe\u2019s father\u2019s green and white pickup truck to observe Robinson\u2019s house. Jordan said they stayed there a whole afternoon and planned to steal the safe which they would then bury in the Andrews\u2019 yard.\nJordan testified further that on the afternoon of February 20 he .was at home visiting with his mother when Joe and Scott arrived in the green and white truck. When Jordan\u2019s mother left, at about 4:00 p.m., the three men drove to the park in the truck and watched Robinson\u2019s home until a hired person working around the house left at about 5:30 p.m. Joe gave Jordan and Scott each a pair of white gloves to wear while taking the safe. They then drove to Robinson\u2019s home. Jordan stayed in the driveway with the truck while Joe and Scott went into a carport. Jordan then heard choking sounds and Scott waved to him to come to the carport where Jordan saw Robinson lying atop an air conditioner.\nJordan said that when he and Scott attempted to enter a shop area to get the safe, they tripped a burglar alarm. As Jordan and Scott were running back to the truck, Jordan looked back and saw Joe with his hand on Robinson\u2019s chest, but he did not see a knife. Joe, who had blood on his hands, got in the truck and told Jordan and Scott that he had choked Robinson with a rope and stabbed him two or three times. They then drove to Delaware'Park. Joe had Robinson\u2019s wallet from which he gave Jordan $100 and Scott $95, keeping $95 for himself.\nDanny Jordan\u2019s mother, Wilma Jordan, testified that Danny Jordan and Joe Andrews were good friends. She was at Danny Jordan\u2019s home on the afternoon of February 20 when Joe and Scott Andrews pulled up in a green pickup truck. She left them there together at around 3:45 or 4:00 that afternoon.\nJames Warren testified that, on February 20 at 5:30 p.m., he saw three men in the park where he was jogging. The three were looking south toward Robinson\u2019s home. He also saw a green pickup truck near the men.\nSandra Rackley testified she saw her brother, Danny Jordan, and Joe Andrews together at 8:00 p.m. on February 20.\nCarrie Payton testified that Scott Andrews came to the Gum Log area, on February 20 between 5:30 and 6:00 p.m., where her mother\u2019s and her grandmother\u2019s homes were. On cross-examination she stated it could have been 6:30 or 7:00 p.m. as she had said in an earlier statement to the police. She testified Scott told her he had almost $100. He offered to give her $5.00, and the following day he brought her a bottle of champagne, a dozen roses in separate vases, and a stuffed animal.\nCarrie Payton\u2019s mother testified that, in addition to the items Carrie mentioned, Scott brought her a small \u201cpromise ring\u201d with a diamond in it.\nJean Andrews, wife of Joe, testified that Scott was unemployed and had been since November. Another witness testified that Scott had done odd jobs for her but that she had paid him no more than $50 the week prior to February 20.\nPolice officers testified they arrested Scott on suspicion of having killed Robinson. When arrested, Scott was at an outdoor \u201cbeer party\u201d where people under age were drinking. When the officers began looking through the crowd for Scott, he attempted to move toward the edge of the group, and when they approached him, he began to run but was tackled after taking about six strides. He was given a rights warning and placed in the officers\u2019 car. One officer asked the other if Carrie was at the party, and Scott volunteered a statement that she was not involved in \u201cthis mess\u201d and there was no reason for her to be.\nA felony conviction may not be based on the testimony of an accomplice unless it is \u201ccorroborated by other evidence tending to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows that the offense was committed and the circumstances thereof.\u201d Ark. Code Ann. \u00a7 16-89-111(e)(1) (1987). \u201cThe test for determining the sufficiency of corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission.\u201d Foster v. State, 290 Ark. 495 at 498, 720 S.W.2d 712 at 713-14 (1986).\nThe question presented to the trial court at the close of the State\u2019s case by motion for directed verdict was whether the corroborating evidence met the statutory requirement, that is, whether it was sufficient to establish the commission of the offense and connect Scott Andrews with it. The trial court denied the motion.\nNo motion for a directed verdict was made by the defendant at the close of the case. Arkansas R. Crim. P. 36.21 (b) provides:\nFailure to Question the Sufficiency of the Evidence. When there has been a trial by jury, the failure of a defendant to move for a directed verdict at the conclusion of the evidence presented by the prosecution and at the close of the case because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.\nThe sufficiency of the evidence issue was thus waived by failure to move for a directed verdict at the close of the case, and we decline to consider the issue on appeal. Thomas v. State, 303 Ark. 210, 795 S.W.2d 917 (1990); Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1981).\nThe State has not argued that Scott Andrews failed to make the motion. Counsel for Andrews quite properly called the problem to our attention in oral argument but contended that the rule should not apply in this case because none of the evidence presented by Andrews could have influenced the court\u2019s decision to deny the motion for directed verdict for lack of corroboration which was made at the close of the State\u2019s evidence. No authority was cited for this argument, and we are not convinced by it.\nThe Reporter\u2019s Note to Rule 36.21(b) states that the Rule was amended in 198 8 to include the requirement that the directed verdict motion be made at the close of all the evidence to bring the practice in line with that in civil cases. The civil Rule is found at Ark. R. Civ. P. 50(e). In civil cases we hold that a defendant\u2019s presentation of evidence after denial of his or her directed verdict motion constitutes a waiver of the question whether the evidence is sufficient to go to the jury. Higgins v. Hines, 289 Ark. 281, 711 S.W.2d 783 (1986); Granite Mountain Rest Home v. Schwartz, 236 Ark. 46, 364 S.W.2d 306 (1963).\nIn Sanson v. Pullum, 273 Ark. 325, 619 S.W.2d 641 (1981), we referred to the requirement of renewal of the motion as a \u201csettled rule,\u201d and we explained that:\nIf a defendant could introduce evidence without waiving his first motion for a directed verdict, he could supply the very defect complained of and still obtain a new trial after having speculated upon the possibility of a favorable verdict upon all the proof.\nRule 36.21 could not be clearer, and we are not inclined to make an exception to it which would require us to evaluate whether a defendant\u2019s evidence, or perhaps evidence brought out by the State on cross-examination of the defendant\u2019s witnesses, makes a difference in whether a verdict should be directed, especially when the trial court has been given no opportunity to make such a decision.\nAffirmed.\nBrown, J., concurs.", "type": "majority", "author": "David Newbern, Justice." }, { "text": "Robert L. Brown, Justice,\nconcurring. I concur in the majority\u2019s opinion and regret that a procedural failing precludes us from considering whether the evidence in this case includes sufficient evidence to corroborate an accomplice\u2019s testimony. The parties are at odds over the test for sufficient corroborative evidence. The appellant argues that such evidence must be independent evidence which can sustain a conviction separate and apart from the accomplice\u2019s statement. The Attorney General submits that corroborative evidence may merely be evidence verifying those facts asserted by the accomplice. Our past cases confirm that neither party hits the mark. The importance of this issue mandates some discussion of it.\nArkansas law requires that the corroborative evidence tend to connect the defendant with the commission of the crime. Ark. Code Ann. \u00a7 16-89-111 (1987). Corroboration is not sufficient, if it merely shows that the crime was committed and the circumstances of the crime. Id. We have held that the \u201ccorroboration must be sufficient standing alone to establish the commission of the offense and to connect the defendant with it.\u201d Johnson v. State, 303 Ark. 12, 17, 792 S.W.2d 863, 865 (1990); David v. State, 295 Ark. 131, 140, 748 S.W.2d 117, 122 (1988). The corroborative evidence must be substantial evidence which is stronger evidence than that which merely raises a suspicion of guilt. Henderson v. State, 279 Ark. 435, 652 S.W.2d 16 (1983). Circumstantial evidence qualifies as corroborating evidence but it, too, must be substantial. See David v. State, supra. However, corroboration need not be so substantial in and of itself to sustain a conviction. See Rhodes v. State, 280 Ark. 156, 655 S.W.2d 421 (1983); Walker v. State, 277 Ark. 137, 639 S.W.2d 742 (1982).", "type": "concurrence", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Gibbons Law Firm, by: David L. Gibbons, for appellant.", "Winston Bryant, Att\u2019y Gen., Jeffrey Vining, Asst. Att\u2019y Gen. for appellee." ], "corrections": "", "head_matter": "Kenneth Scott ANDREWS v. STATE of Arkansas\nCR 90-263\n807 S.W.2d 917\nSupreme Court of Arkansas\nOpinion delivered April 22, 1991\nGibbons Law Firm, by: David L. Gibbons, for appellant.\nWinston Bryant, Att\u2019y Gen., Jeffrey Vining, Asst. Att\u2019y Gen. for appellee." }, "file_name": "0262-01", "first_page_order": 288, "last_page_order": 293 }