Opinion
CR-22-72
11-30-2022
JOHN BRANDON SELF APPELLANT v. STATE OF ARKANSAS APPELLEE
James Law Firm, by: William O. Bill James, Jr., and Ashley N. Dyer, for appellant. Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.
APPEAL FROM THE SALINE COUNTY CIRCUIT COURT [NO. 63CR-20-230] HONORABLE JOSH FARMER, JUDGE
James Law Firm, by: William O. "Bill" James, Jr., and Ashley N. Dyer, for appellant.
Leslie Rutledge, Att'y Gen., by: Pamela Rumpz, Sr. Ass't Att'y Gen., for appellee.
BART F. VIRDEN, Judge
John Brandon Self appeals a Saline County Circuit Court jury's conviction of kidnapping (Class Y felony.) On appeal, he argues that there was insufficient evidence to convict him, and the circuit court erred in denying his motion to suppress the photographic-lineup identification and certain testimony. We affirm.
As a preliminary matter, we take this opportunity to strongly caution appellant counsel regarding the requirements of Arkansas Supreme Court Rule 4-2(a)(6). According to In re Acceptance of Records on Appeal in Elec. Format, 2020 Ark. 421 (per curiam), appellants are required, as of June 1, 2021, to file briefs electronically. Additionally, all briefs
shall contain a concise statement of the case and the facts without argument. The statement shall identify and discuss all material factual and procedural information contained in the record on appeal. Information in the appellate record is material if the information is essential to understand the case and decide the issues on appeal. All material information must be supported by citations to the pages of the appellate record where the information can be found.See Ark. S.Ct. Rule 4-2(a)(6).
Self's statement of the case is limited to a sparse procedural timeline setting forth his arrest pursuant to a warrant for kidnapping, aggravated assault, first-degree battery, and felon in possession of a firearm. Self minimally recounts his first appearance, arraignment, and the court's decision to grant multiple continuances. He includes the bare mention of the court's decision to deny his motion to suppress the photographic identification, his conviction of kidnapping, and sentence of nine hundred months' imprisonment in the Arkansas Department of Correction.
The language used by the supreme court in Rule 4-2 is mandatory, and going forward, we cannot overlook counsel's failure to comply with the rule requiring inclusion of "all material factual and procedural information contained in the record on appeal." Id. The requirement that a statement of case be included is not only for the benefit of this court to understand the case and facts, but the failure to include necessary facts can also limit an appellant's requested review of any opinion handed down by this court. Rule 2-3(h) of the Arkansas Rules of the Supreme Court states that "[i]n no case will a rehearing petition be granted when it is based upon any fact thought to have been overlooked by the Court, unless reference has been clearly made to it in the statement of the case and the facts prescribed by Rule 4-2."
I. Relevant Facts
On January 23, 2020, an arrest warrant for Self issued stating that reasonable grounds existed for believing that Self committed kidnapping (Class Y felony, Ark. Code Ann. § 5-11-102 (Repl. 2013)); first-degree battery (Class B felony, Ark. Code Ann. § 5-13-201 (Supp. 2021)); aggravated assault (Class D felony, Ark. Code Ann. § 5-13-204 (Supp. 2021)); and possession of firearms by certain persons (Class D felony, Ark. Code Ann. § 5-73-103) (Supp. 2021)). Self was arrested on January 24. On March 17, Self was charged with kidnapping (Class Y felony, Ark. Code Ann. § 5-11-102), as a habitual offender (Ark. Code Ann. § 5-4-501 (Supp. 2021)).
On August 16, 2021, Self filed a motion to suppress the photographic identification and any in-court future identification. Self claimed that the photo lineup was of "six men, all of vastly different appearances." The other men in the lineup had dark hair and facial hair except for the defendant, who has reddish-blond hair; thus, he argued, the lineup was unduly suggestive and likely to cause misidentification. Self also filed motions to exclude evidence regarding cell-phone records. After an omnibus hearing on August 20, the motions were denied.
Self's trial was held from August 24 to August 26, 2021. Kylie Goddard, who was twenty-two years old at the time of the trial, testified that she lived with her family in Benton and was employed at Boyd Metals, which is located near the airport in Little Rock, from September 2019 to January 2020. Goddard worked Monday through Friday from 8:00 a.m. to 5:00 or 5:30 p.m. in the administrative office. On January 22, 2021, when her shift ended, she drove her regular route home. It was raining and getting dark, and as she was driving home, she noticed an older, dark-colored Chevrolet truck following "real close" behind her. The truck pulled up beside her while she was driving on I-30 and then slowed down and drove behind her again. She took the Alcoa Road exit, and for a short time, she could not see the truck; however, when she turned onto Helmich Road, she noticed that the same truck was behind her with a car in between them. Goddard turned onto Hart Road and was entering her driveway when the truck collided with her. As she was reaching for her phone to call her father, a man opened the driver's door, put a gun to her head, and told her to "get the fuck out of the car." The man grabbed Goddard by her left arm and pulled her from the car onto the ground, hitting her head against the door frame. Her attacker was wearing a black hoodie, dark jeans, and dirty boots. He dragged her on her back by her hair toward the truck, which she now noticed had four doors and was a "dark, grayish-black color." Goddard, who is five feet four and has martial-arts training, screamed and fought. As they grappled, Goddard pulled up her attacker's mask and saw his "gross . . . not well taken care of teeth" and his beard, which was "very scraggly and not well cut or groomed, a lighter color." Goddard noted that he smelled of cigarettes and musty old clothes, was about six feet or six feet one, and had a "very thin, lankier" build. He punched Goddard in the face, hit her in the head with his gun, and grabbed her and forced her to the ground. Goddard escaped his grasp and sprinted up the driveway to the back door of her home. Her sister let her in the door, and she ran to the front of the house and collapsed. Goddard's father opened the front door as the truck was pulling out of the driveway. Goddard's face and mouth were bleeding and swollen, her chest and throat hurt, and she had sustained shoulder, neck, and head injuries.
Self renewed his motion to exclude the photographic-lineup evidence before Goddard's testimony, which the court denied.
Melissa Brewer testified that on the evening of January 22, she was driving home on Hart Road when saw "a man beating a girl on the ground while she was kicking and screaming" in Goddard's driveway. Brewer called 911 and followed the truck, keeping the operator apprised of their location. She described the truck as a "pewter gold colored" Chevrolet with damage to driver's-side back door. Brewer chased the truck in her car back and forth throughout the area near where the attack occurred. Brewer testified that she thought that the driver was white and had a beard, but she had not seen his face clearly. Later in the trial, a phone-records custodian for T-Mobile testified that cell-phone records showed that on January 22, 2020, from 4:58 to 5:52 p.m., Self's cell phone was communicating with the cell towers in and around the route from Boyd Metals to Goddard's home and the surrounding area.
Detective Jacob Dane of the Saline County Sheriff's Office arrived at Goddard's home around 6:00 p.m. and interviewed her. Detective Dane took photos of Goddard's injuries, and a crime-scene technician swabbed under her nails and took her clothes as evidence. Goddard, whose hair was dyed purple, gave a hair sample. Goddard's father found a black knitted hat beside Goddard's car in the driveway and alerted the police, who collected the hat as evidence. The next day, Detective Dane showed Goddard six photos, one at a time, and then placed them as a group on the table. Goddard told Detective Dane that the man in photograph number five (Self) had the same light skin and lighter colored beard, though her attacker's beard was longer. Goddard stated that the man in photograph five looked like someone who worked in the warehouse at Boyd Metals, though she was used to seeing him with glasses, which the man in the photo was not wearing. She did not positively identify Self as her attacker, and she stated that the beard of the man in photograph number six was close in color but still not exactly the same. Detective Dane contacted the shop foreman at Boyd Metals who identified John Self as matching the description of Goddard's attacker. The foreman also stated that Self drove a truck matching the one Detective Dane described. Self was taken into custody at his home and was allowed to put on a hoodie before they left. At the police station, Detective Dane noticed purple hair on Self's hoodie. The jacket was folded and put into an evidence bag. The police took hair samples, fingernail swabs, and buccal swabs from Self, and his cell phone was seized. Photographs were taken of Self's four-door Chevrolet Silverado extended-cab truck, which had damage to the driver's-side back door and to the hood and front bumper.
The hair sample was given at a later date, and Goddard's hair was still purple.
Stan Landrum, a supervisor at Boyd Metals, testified that he noticed on January 22 that Self took a longer lunch than usual, about an hour and a half to an hour and forty-five minutes. Landrum recalled that Self's lunch began at 4:45 p.m. that day. Ricky Lenz, the foreman at Boyd Metals, testified that Goddard left work around 5:00 p.m. that day. Around 5:45 or 6:00, Lenz realized that Self was late coming back from lunch, so he texted Self to see where he was, and Self replied that he had hydroplaned into a ditch and had to get unstuck. Approximately fifteen minutes or so after he noticed Self's prolonged absence, around 6:15, Self arrived back at work. On January 23, Lenz received a call regarding the description of a man who was around six feet one, slender, had reddish facial hair and drove a gray or champagne-colored Chevrolet extended cab. He identified Self as matching that description and driving a similar Chevrolet Silverado crew cab. He also identified Self as a smoker. He stated that on January 22, Self had worn a black hoodie, blue jeans, work boots, and a black toboggan cap. Lenz stated that Self wore a different hoodie the next day.
Stephen Weathers, a crime-scene technician, took photos of Self's truck-specifically, the damage to the left side of the hood and bumper. He found a pocketknife, duct tape, and twine in the cab of the truck. Everett Davis, a sergeant with the Saline County Sheriff's Office, collected surveillance video from Prince Liquor and Ample Storage, two businesses along the route that Goddard took home. The Ample Storage video showed what looked like Goddard's vehicle passing the business at 5:07 p.m. going toward Salem Road, and "right behind that-about a car length behind that was what appeared to be the suspect truck." The Prince Liquor video also showed the same vehicles passing around 5:10 p.m., and Everett testified that Prince Liquor is located about two to two and a half minutes down the road.
Laura Adams, a forensic examiner in the DNA Casework Unit in the FBI laboratory in Quantico, Virginia, testified that the analysis of the hair found on Self's hoodie did not have the root material attached, which is better for getting "nuclear DNA," but that the hair submitted could still be evaluated for mitochondrial DNA. The evaluation showed that the hair obtained from Self's hoodie shared the same mitochondrial DNA as Goddard's hair sample. Adams testified that she was confident with 95 percent certainty that only .45 percent of the white population in the United States have this DNA.
A recorded interview by Investigator Brian Jacks of the Arkansas State Police was played for the jury. During the interview Self told him that on January 22, he worked until a little after 5:00 p.m. and then left for his father's house at Martin Luther King and 19th Street in Little Rock to give him money to buy food and cigarettes. While Self was there, his father, who is five feet six, borrowed his truck for around forty-five minutes, though later he estimated the time to be twenty-five minutes. Self explained that on his way back to work, he hydroplaned into a ditch and was stuck there for a while. He got the truck out of the ditch, went back to work, and was there until 9:30 p.m. He denied driving his truck toward Goddard's home during his lunch break or attacking Goddard. He stated that the damage to his truck happened in the Sherwood Wal-Mart parking lot.
Mikaila Payne testified that she worked as a dancer at Club Sensations in Jacksonville, and sometime during the late night and early morning hours on December 5 and 6, 2019, she approached Self when she noticed he was looking at her. During their conversation, Payne told Self which trailer park she lived in, and he told her he had been the manager there. Payne testified that she was "creeped out" and told her manager to keep an eye on Self. She and her roommate, Jasmine Jenkins, left the club around 3:50 a.m. Payne explained that she is always very careful to be aware of her surroundings and that on this early morning, she checked the parking lot on the cameras before she left to make sure it was empty. Payne stated that she always checks the parking lot because she does not want any customers to see her car or what she looks like outside of the club. When Payne and Jenkins arrived at the trailer park, there was an older Chevrolet truck that she did not recognize parked across from the manager's office. She told Jasmine to watch the truck, and as they drove toward their trailer, the truck followed them. Payne passed her trailer because she did not want the driver to know where she lived, and she made a U-turn at the end of the trailer-park drive and went back to the manager's office. The truck continued to follow them. Payne banged on the manager's door, but she did not answer, so Payne drove back to their trailer, and they ran inside. Payne called the police and watched from the front window as Jenkins went back out to the truck and opened the door to confront the driver. Payne recognized Self and the clothes he was wearing.
At the close of the evidence, Self renewed the motion to exclude the photographic lineup, asserting that Goddard admitted she had picked Self's photograph because the men in the other photographs had dark hair, and Self was the only one with a light beard and skin. The court denied the motion, finding that Goddard also said that number six had a light beard. Self renewed his motion to suppress Payne's Rule 404(b) testimony because "I don't think it is close enough in the plan, motive, etc. I don't think it matches the requirements for 404(b)[.]" The court found that Payne's testimony was admissible "because this is such unique behavior[.]" Self moved for a directed verdict contending that the State did not present sufficient evidence to identify him as the culprit, and the motion was denied.
Self was found guilty of kidnapping and sentenced to nine hundred months' incarceration in the Arkansas Department of Correction. He timely filed his notice of appeal.
II. Discussion
A. Motion to Suppress
For his first point on appeal, Self asserts that the circuit court erred by denying his motion to suppress the photo-lineup identification of him.
Whether Goddard's identification of the photograph of Self's beard as similar to that of her attacker constitutes "identification" is not an issue in this appeal.
Self contends that the pretrial identification was unduly suggestive because the other five men in the lineup had darker facial hair and complexions. His claim is meritless. Our supreme court has held that a pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Ray v. State, 2009 Ark. 521, at 7-8, 357 S.W.3d 872, 879. But, even when the process is suggestive, the circuit court may determine that under the totality of the circumstances, the identification was sufficiently reliable for the matter to be decided by the jury. Id.
In Smith v. State, 2015 Ark.App. 418, 467 S.W.3d 750, this court affirmed the circuit court's decision to deny a motion to suppress the photographic lineup under similar facts, holding that
all those in the photo spread appeared to be white males; each appeared to have some facial hair; each had at least some hair on his head; at least five appeared to be near the same age; and each appeared to have a similarly shaped head and facial features. Further, the procedure was not suggestive because the officers did not attempt to
influence Colton's or Sandusky's identification of Smith when presenting the photographs.
Additionally, in Smith, this court cited United States v. Granados, 596 F.3d 970 (8th Cir. 2010) in which the Eighth Circuit Court of Appeals held that the photo lineup was not rendered impermissibly suggestive by the fact that not all the individuals in six photos shown had facial hair. In the instant case, all the men featured in the lineup were the same race (white), all had facial hair, and they were within two to five years of Self's age (thirty-seven). We find no error and affirm the circuit court's denial of the motion to suppress.
B. Sufficiency of the Evidence
Self argues that there was insufficient evidence that he committed the offense of kidnapping because the only evidence identifying him as Goddard's attacker was circumstantial, and "the State failed to provide any evidence or testimony relating to any purpose of the alleged kidnapping." Self's argument is not well taken.
At the close of the evidence, Self moved for a directed verdict, arguing that
[t]he State has to prove that he committed the offense of kidnapping without their consent, he restrained another person substantially interfering with the other persons liberty charged under two manners which are different from each other. One is inflicting personal injury upon the other person, and one is terrorizing the other person or another person. I would say that the State is not proven their case because they haven't proven that it was John Self and therefore the directed verdict should be granted.
Self's argument on appeal has evolved from the motion he made at trial. Our law is clear that a party is bound by the scope and nature of the directed-verdict motion made at trial and cannot change the grounds on appeal. Scott v. State, 2015 Ark.App. 504, 471 S.W.3d 236. Accordingly, Self is limited to appealing only the element of his identification as the perpetrator.
The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Crews v. State, 2017 Ark.App. 670, at 5, 536 S.W.3d 182, 186. Substantial evidence is evidence that would compel a conclusion one way or the other with reasonable certainty, without relying on mere speculation or conjecture. Henson v. State, 2014 Ark.App. 703, 450 S.W.3d 677. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused. Snow v. State, 2018 Ark.App. 612, 568 S.W.3d 290. Circumstantial evidence may not provide the sole basis for a criminal conviction if it can be reconciled with the theory that someone other than the defendant committed the crime. Id. Two equally reasonable conclusions as to what occurred merely give rise to a suspicion of guilt, which is not enough to support a conviction. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id.
Under Arkansas Code Annotated § 5-11-102, a person commits kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person's liberty with the purpose of (1) holding the person for ransom or reward or any other act to be performed for the other person's return or release; (2) using the other person as a shield or hostage; (3) facilitating the commission of any felony or flight after the felony; (4) inflicting physical injury upon the other person; (5) engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other person; (6) terrorizing the other person or another person; or (7) interfering with the performance of an governmental or political function.
The evidence supporting Self's identification as Goddard's attacker, viewed in the light most favorable to the State, is as follows. Goddard identified her attacker as having a reddish beard, light skin, and "gross" teeth, and she identified Self's beard and skin in the photo lineup as very similar to that of the person who had attacked her. Photographs of Self's teeth, which were in poor condition, were introduced into evidence. Goddard described her attacker as "thin and lanky" and around six feet or six feet one, and there was testimony that Self is six feet one and has a slim build. Goddard stated that her attacker smelled of cigarettes, and the jury heard testimony that Self is a smoker. She stated that the truck following her was a four-door Chevrolet with a black and gray interior, and multiple people identified Self's truck as such, and the State submitted photographs confirming that Self's truck matched that description. Melissa Brewer stated that she chased the Chevrolet truck through the area back and forth after seeing the driver beating a person in Goddard's driveway. She described the truck as "champagne" colored "kinda mixed with pewter," which the photographs of Self's truck also confirm. When police searched Self's truck, they found duct tape, twine, and a pocket knife. The T-Mobile records custodian testified that records showed that Self's phone was communicating with cell-phone towers along Goddard's route home from Boyd Metals and in the area around the time of the attack. Self's coworkers testified that Self was late coming back from lunch and not at work around the same time as the attack occurred. Self's explanation that he was in Little Rock at his father's house is contrary to the cell-phone records placing him along Goddard's route home from Boyd Metals during the time he was not at work. Expert testimony showed that the purple hair found on Self's hoodie contained the same mitochondrial DNA as Goddard's, and the expert from the FBI laboratory stated with 95 percent certainty that only .45 percent of the white population have this mitochondrial DNA. In light of the evidence, we hold that the jury was not forced to speculate or resort to conjecture. Sufficient evidence supports the jury's decision that Self was the person who committed the kidnapping.
C. Admissibility of Testimony
For his third point on appeal, citing the more stringent "modus operandi" criteria for determining the admissibility of testimony regarding prior bad acts, Self argues that Goddard's account of her attack and Payne's recollection of the events of a month before are not "strikingly similar" and do not justify admission of the Rule 404(b) evidence. Self's argument is not well taken.
Arkansas Rule of Evidence 404(b) provides that "evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis added.) In analyzing the admission of evidence under Rule 404(b), this court has stated that such evidence is not admissible simply to show a prior bad act. See Rollins v. State, 362 Ark. 279, 208 S.W.3d 215 (2005). To be admissible, the evidence must be independently relevant, which means it must have a tendency to make the existence of a fact of consequence to the determination of the case more or less probable. See id. While evidence of other crimes or bad acts may be admissible under Rule 404(b), to be probative under Rule 403, the prior crime or bad act must be similar to the crime charged. Davis v. State, 362 Ark. 34, 46, 207 S.W.3d 474, 483 (2005). When offered as Rule 404(b) evidence, the prior bad act need not have the degree of similarity that is required for evidence of modus operandi. See Sasser v. State, 321 Ark. 438, 447, 902 S.W.2d 773, 778-79 (1995); Osburn v. State, 2009 Ark. 390, at 41, 326 S.W.3d 771, 794. The prior bad act does not have to be identical, just similar. See id. Evidence admitted pursuant to Rule 404(b) must not be too separated in time, making the evidence unduly remote. Baumann v. State, 2018 Ark.App. 564, at 6, 566 S.W.3d 494, 499.
The circuit courts have broad discretion in deciding evidentiary issues, including the admissibility of evidence under Rule 404(b). The circuit court's decision will not be reversed absent an abuse of discretion. Rounsaville v. State, 2009 Ark. 479, 346 S.W.3d 289. The abuse-of-discretion standard is a high threshold that does not simply require error in the circuit court's decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Hortenberry v. State, 2017 Ark. 261, at 10, 526 S.W.3d 840, 847. "The degree of similarity between the circumstances of prior crimes and the present crime required for admission of evidence under Rule 404(b) is a determination that affords considerable leeway to the trial judge, and may vary with the purpose for which the evidence is admitted." Sasser, 321 Ark. at 447, 902 S.W.2d at 778.
The motion to suppress Payne's Rule 404(b) testimony was discussed on August 20 at a pretrial omnibus hearing. This hearing is not in the record; however, a second omnibus hearing regarding the admissibility of Payne's testimony was held out of the jury's presence during the trial. During the hearing, Payne recounted the events of December 5 and 6, 2020. Payne stated that she met Self at the club while she was working, during their conversation he gave her "the creeps," and when she arrived home at her trailer park, he was waiting for her near the entrance and followed her to her trailer. Payne also described the painstaking steps she took to make sure she was safe both at the club and when she left work to ensure that no customers would know what car she drove or what she looked like outside of the club. Self also testified at the hearing and denied any wrongdoing. He stated that on the night and early morning of December 5 and 6, he met Payne at Club Sensations, and during conversation Payne told him where she lived. The conversation turned to the possible purchase of marijuana, and Self told Payne that he could probably obtain marijuana for her. Self explained that she said she would not be leaving work until 3:30 or 4:00 a.m., but that "she might be needing some." Self explained that he had planned to sell marijuana to a friend that night, so he had his friend meet him at the trailer park "just kill two birds with one stone." After the hearing, the court found that Payne's testimony regarding the events of December 5 and 6 was admissible, specifically finding that Payne was credible. The court noted how careful and methodical Payne was when it came to her personal safety and that
[i]t sounds like it is almost a career for her. And that's something always is in the back of her mind. So, it just doesn't seem plausible that if she was going to buy marijuana from a stranger-if she's concerned about her safety that she would hypothetically bring him to her house and then call the cops.
In summary, the circuit court held two omnibus hearings, and after the second hearing, the court discussed in detail its reasoning for denying the motion; thus, the court did not act improvidently, thoughtlessly or without due consideration in making the decision.
The degree of similarity between Payne's and Goddard's testimony is such that we cannot say the circuit court erred in admitting it pursuant to Rule 404(b). Payne and Goddard are both young women around the same age. Self observed both Payne and Goddard while they were at work. Both women recalled that Self followed them in his truck to their homes when it was dark. In both instances, Self left Payne's and Goddard's workplaces before the women left work and then caught up with them en route. Moreover, the incidents occurred about a month apart, making them close in time. In light of the circuit court's consideration of the testimony, the similarity of Payne's and Goddard's recollection, and the leeway given to circuit courts to determine the admissibility of Rule 404(b) evidence for the purpose of showing motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, we affirm.
Affirmed.
Barrett and Hixson, JJ., agree.