ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JUDGE WENDELL L. GRIFFEN

DIVISION IV

CACR00-1379

September 5, 2001

STACEY STEPPS AN APPEAL FROM LONOKE

APPELLANT COUNTY CIRCUIT COURT

[CR99-92]

V. HON. LANCE L. HANSHAW, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Stacey Stepps appeals from his conviction as an accomplice to aggravated robbery.1 He argues that the trial court erred in denying his motion for a directed verdict because the evidence was based entirely on uncorroborated accomplice testimony. We hold that appellant waived this argument below. Therefore, we affirm. Although we do not reach the merits of appellant's argument regarding the sufficiency of the evidence, because the crimein this case allegedly involved numerous participants, a review of the testimony offered in this case is necessary to explain why appellant's argument is procedurally barred. This appeal arises from the robbery of Delbert Minton's beauty salon in England, Arkansas, on January 22, 1999. The State alleged that on that date, Quinnten Terry stood watch outside the salon while Eric Epperson (appellant's cousin) and Chris King went inside and used a gun to steal money from the cash register and a purse from one of the customers. At trial, the State presented evidence that appellant helped plan the robbery, that he supplied the gun, and that he received a share of the stolen money.

Delbert Minton, owner of the beauty shop, Trudy Hughes, and Debbie Fisher, all of whom were in the shop when the robbery occurred, testified as follows. Minton was working on Hughes's hair when Fisher came into the shop to visit with Hughes. At approximately 6:45 p.m., three black males opened the door to the shop. Each had a bandanna tied around his face, and one was holding a pistol. Two of the males entered the shop, shouting obscenities and threats, while the third waited outside. The male with the gun jammed it into Minton's body, demanded money, and took $250 and some checks from the cash register. The other male cursed Fisher and demanded the purse lying near her, which belonged to Hughes, and which Fisher relinquished. Minton identified the gun as a small, silver-colored handgun with two barrels. Fisher's purse was recovered prior to the trial by Epperson's mother, who is also appellant's aunt. Fisher testified that she had $400 cash in her purse and identified the purse and the items contained therein as her property.

Epperson and King testified that they and Terry planned the robbery and that CharlesWise told them they could hide at his house after the robbery. In addition, King testified that prior to the robbery, they met at Wise's home and that Wise gave them some ski masks. King and Epperson testified that after the robbery, they and Terry returned to Wise's home. Wise was not at home, so they went instead to King's home.

In their initial statements to the police, neither Epperson nor King implicated appellant in the robbery. However, each implicated appellant in his respective second statement to the police. Epperson indicated in his second statement that appellant was at Wise's home while they were planning the robbery and that appellant later helped divide the money. King indicated in his second statement that appellant had given them a gun, that they split the money with him, and that appellant returned Hughes's purse to them, which they had previously thrown under Wise's house.

However, at trial, King and Epperson testified that appellant did not participate in the robbery. They admitted that they did not implicate appellant in their first statements to police and asserted that they only did so in their second statements because Officer Nathan Cook told him that he would "get" or "give" them "forty years" if they did not help him "get" appellant. Although Epperson had indicated in a prior statement to the police that he obtained the gun used during the robbery from appellant, he maintained at trial that he got the gun from a friend in Little Rock.

Terry, a juvenile, did not implicate appellant in either of his statements to the police. He admitted at trial that he, Epperson, and King were involved in the robbery. His testimony at trial regarding appellant's presence at Wise's home before and after the robberyis conflicting. He testified that he did not see appellant at Wise's home, but admitted that he told the prosecutor that appellant was there. He stated that he met King and Epperson on the way to Wise's house, then they met appellant "on the next block." He further stated that he first heard about the robbery while he, King, and Epperson were walking to Wise's house and that appellant suggested that they return to Wise's house after the robbery. Terry also testified that the original plan was for appellant, King, and Epperson to rob the shop. However, when appellant later returned limping, Terry was then substituted. He stated that Wise would not allow them to return to his house after the robbery, so they ran to King's house.

Terry further testified that about twenty minutes after they arrived at King's house, appellant arrived and received a share of the money. He remembered appellant "having the purse." He stated that appellant took some of the money and knew where the money came from because he was present when they were planning the robbery. Terry testified that he received threatening letters that he believed were from appellant, indicating that if he went to court that "me and Main [Epperson] will kill you." Finally, he testified that the night before the trial, appellant told him that if he received a letter requiring him to testify that he should give appellant a call.

Lois Epperson, appellant's aunt, testified that her son and appellant lived with her during January 1999. She stated that she later found her dog playing with a purse that contained, among other things, credit cards with the name "Hughes" and a checkbook bearing the name "Debbie Hughes."

Officer Nathan Cook denied that he threatened King and Epperson if they did not implicate appellant. He stated that appellant became a suspect after the police department received an anonymous telephone call while the investigation was underway. Based on the tip, he re-interviewed Epperson and King, who then implicated appellant.

Eddie Donaho, a former officer with the England Police Department, testified that he took statements from King, Epperson, Wise, and Terry. He testified that King and Epperson each gave a statement indicating that appellant had given them the gun and the masks that were used during the robbery. Donaho said that in King's second statement, he said that appellant was waiting at Wise's house when they returned from the robbery and that he ran with them to King's house.

Wise testified that appellant, Epperson, King, and Terry came by his house on January 22, 1999. He said that appellant had a .38 caliber revolver and that King also had a .38 caliber gun. He stated that "they" indicated they were going to commit a robbery. They asked if they could return to his house after the robbery, and because he was frightened, he agreed. Wise denied giving them any guns, ski masks, or any items to assist in the robbery. He stated that he did not want to become involved, but only wanted them to leave so he could lock his door and go elsewhere. Wise said that appellant was outside of his trailer as he left. He said that when he returned from his cousin's house at about 2:30 a.m., appellant was waiting there, stuck a gun to his head, and threatened to kill him if he talked to the police.

The State thereafter rested. Appellant's counsel requested a jury instruction based on accomplice liability regarding King and Epperson's testimony, which the court agreed togive. He also argued that the testimony, standing on its own, was insufficient to sustain a guilty verdict. The court denied the motion.

Willie Tillman testified for the defense. He testified that he saw appellant on the night of the robbery and that appellant indicated that he should not go over to Park Street (where Minton's beauty shop is located) because the police were "too hot" over there.

At this point, appellant rested his case and renewed his motion for a directed verdict on the ground that the State had only presented accomplice testimony and he could not be convicted solely on accomplice testimony. He further argued that the evidence was insufficient. The trial court again denied the motion.

Appellant timely moved for and renewed his motions for a directed verdict upon the basis that the State presented only uncorroborated accomplice testimony and that such testimony is insufficient as a matter of law to support a finding of accomplice liability. However, we hold that appellant failed to preserve his argument regarding the application of the accomplice liability rule because he failed to obtain a ruling by the trial court that Wise or Terry were accomplices as a matter of law and failed to request that the trial court submit the issue to the jury. See Pond v. State, 69 Ark. App. 346, 14 S.W.3d 525 (2000); Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).

Appellant bears the burden of proving that a witness is an accomplice whose testimony must be corroborated. See Lloyd v. State, 332 Ark. 1, 962 S.W.2d 365 (1998). Here, the record is devoid of any indication that appellant requested that the trial court declare Wise or Terry to be accomplices as a matter of law or requested any jury instructions in that regard. Moreover, Jury Instruction Number 11, to which appellant agreed withoutobjection, indicated:

It is contended that the witnesses, Chris King and Eric Epperson, were accomplices. If you find that they were, then Stacy Stepps cannot be convicted of aggravated robbery upon testimony of those witnesses unless that testimony is corroborated by other evidence tending to connect Stacey Stepps with the commission of the offense . . . . The testimony of one accomplice is not alone sufficient to corroborate the testimony of another accomplice.

Appellant did not object to this instruction or argue that Wise or Terry should also be identified in this instruction as accomplices. Therefore, we do not reach the merits of his argument regarding the application of the accomplice-liability rule.

Affirmed.

Stroud, C.J., and Neal, J., agree.

1 We recently reviewed the appeal from the two other defendants charged in this case, Eric Epperson and Chris King, and affirmed their convictions. See Epperson v. State, No. CA CR00-00497, 2000 WL 1701992 (Ark. Ct. App. Nov. 15, 2000). The instant appeal arises from appellant's second trial in this matter. The first trial ended in a mistrial.