The court of appeals rejected the State's argument that assault is a continuous offense, instead holding that the State was bound to prove that Hernandez exhibited or used water as a deadly weapon either before or while he struck her on her head or body with his hands. Hernandez v. State , No. 06-15-00167-CR, 2016 WL 4256938, at *1 (Tex. App.-Texarkana Aug. 5, 2016), rev'd , 556 S.W.3d 308, 2017 WL 4675371 (Tex. Crim. App. Oct. 18, 2017). Finding that the evidence did not support those allegations, it further held that Hernandez's conviction for <mask> with a deadly weapon could not stand. Id. According to the court of appeals, because the evidence was insufficient, the proper remedy was to reform Hernandez's conviction for aggravated assault to reflect a conviction for simple assault and to remand the case to the trial court for a new punishment hearing. Id. at *9.


¶6 The State charged Jones with one count of attempted murder, a class 2 felony and dangerous crime against children (Count 1), one count of attempted murder, a class 2 felony (Count 2), one count of kidnapping, a class 2 felony (Count 3), three counts of kidnapping, class 2 felonies and dangerous crimes against children (Counts 4 through 6), three counts of sexual assault, class 2 felonies (Counts 7 through 9), three counts of <mask>, class 4 felonies (Counts 10 through 12), and three counts of aggravated assault, class 6 felonies (Counts 13 through 15). The State alleged that all counts constituted domestic violence offenses, and listed Mary and all three children as victims.


the video titled “quickie with the wife” shows SPC [V.G.’s] wedding ring on her left ring finger. 20. The Accused posted the videos online “as re- venge” because he believed SPC [V.G.] might be ro- mantically involved with members of his unit. The Accused told [agents of the Criminal Investigation Command] that he posted the videos “roughly be- tween 30 April and 5 May 2018.” The Accused’s con- duct had a reasonably direct and palpable connec- tion to a military mission or military environment. In conjunction with the Accused’s profile name, “cbhiser02” other Soldiers could have reviewed the video and known SPC [V.G.] was depicted, particu- larly as her distinctive, military-style bun was visi- ble. At the time of the offenses, SPC [V.G.’s] legal [last] name was . . . Hiser. She was, and is, an active duty Soldier. SPC [V.G.] and PFC Hiser were well- known as a dual-military couple within the Fort Drum military environment. Based on the entirety of the stipulation of fact and Appel- lant’s answers during the providence inquiry, a military judge sitting as a general court-martial found Appellant guilty of the three specifications of wrongfully broadcasting intimate visual images quoted above, in violation of Article 117a, UCMJ, 10 U.S.C. § 917a, and also of one specification of dis- respecting a superior commissioned officer, one specification of <mask>, one specification of assault consum- mated by a battery, and one specification of communicating a threat, in violation of Articles 89, 128, and 134, UCMJ, 10 U.S.C. §§ 889, 928, 934 (2018). The military judge sentenced Appellant to a reduction to the grade of E-1, confinement for thirty-nine months, and a dishonorable discharge from the service. In accordance with the terms of the pretrial agree- ment, the convening authority approved only so much of the adjudged sentence as provided for a reduction to the grade of E-1, confinement for three years, and a dishonorable dis- charge. The ACCA affirmed the findings of guilty and sen- tence. United States v. Hiser, No. ARMY 20190325 (A. Ct. Crim. App. Feb. 10, 2021). We granted review of the following question: “Whether the military judge abused her discretion by accepting Appellant’s guilty plea to a violation of Article 117a, UCMJ, when Appel- lant posted intimate videos of a person under circumstances


On February 27, 2014, Appellant filed an amended motion requesting the expunction of his arrest records of the <mask> offense pursuant to Article 55.01 of the Texas Code of Criminal Procedure. In his motion, Appellant argued that he was entitled to the mandatory expunction under Article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure despite the fact that he was still facing prosecution for a retaliation offense related to the acquitted aggravated assault offense.


The defendant was subject to a maximum fine of $10,000 for his conviction for <mask> and a maximum fine of $2500 for his conviction for domestic assault. See Tenn. Code Ann. §§ 40-35-111(b)(3), (e)(1). In the instant matter, the jury imposed fines of $1000 and $1500, respectively. When a criminal offense is punishable by a fine in excess of $50.00, the jury is responsible for setting a fine, if any, within the ranges provided by the legislature. Tenn. Code Ann. § 40-35-301(b). “When imposing sentence, after the sentencing hearing, the [trial] court shall impose a fine, if any, not to exceed the fine fixed by the jury.” Id. However, “the trial court may not simply impose the fine as fixed by the jury.” State v. Blevins, 968 S.W.2d 888, 895 (Tenn. Crim. App. 1997). Rather, the trial court’s imposition of a fine, within the limits set by the jury, must be based upon the factors provided in the statutory sentencing act, including “the defendant’s ability to pay that fine, and other facts of judgment involved in setting the total sentence.” State v. Taylor, 70 S.W.3d 717, 723 (Tenn. 2002) (citation and quotation omitted). Although the defendant’s ability to pay should be considered, it is not a controlling factor. State v. Butler, 108 S.W.3d 845, 854 (Tenn. 2003). The trial court “must also consider other factors, including prior history, potential for rehabilitation, financial means, and mitigating and enhancing factors that are relevant to an appropriate, overall sentence.” Taylor, 70 S.W.3d at 723 (citing Blevins, 968 S.W.2d at 895). “The seriousness of a conviction


The juvenile court found that appellant's "record and previous history" weighed in support of discretionary transfer. The court found that appellant had a "lengthy history" of referrals to the Harris County Juvenile Probation Department, which started when he was 12 years old. In support of its findings, the court described the circumstances leading to five prior referrals to the Juvenile Probation Department, including an assault on his mother, criminal mischief, assault and harassment of a public servant, and burglary of a habitation. The order also noted that appellant had been placed in the Harris County Youth Village, the Burnett-Bayland Rehabilitation Center, and the Harris County Leadership Academy. The court found that after the referral for burglary of a habitation, appellant violated his probation, and he was transferred to the Texas Juvenile Justice Department. It noted that appellant was released in November 2016, and he was on parole when he allegedly committed capital murder and <mask>.


"[I]n Texas, as in many other jurisdictions, a defendant may not be convicted for a completed sexual assault by penetration and also for conduct (such as contact) that is demonstrably and inextricably part of that single sexual assault." Aekins , 447 S.W.3d at 281 (citing Castaneda v. State , 315 Ga.App. 723, 727 S.E.2d 543, 544-45 (2012) (explaining child molestation *847involving touching a child's vagina by defendant's hand merged into <mask> by penetration with finger) ); see also Patterson , 152 S.W.3d at 92. In other words, "[w]here the evidence shows the defendant committed only one act that could be used to prove both a greater inclusive and a lesser included offense, the defendant cannot be convicted of both offenses." Martinez , 524 S.W.3d at 347. "Indecency with a child by touching the child's genitals can be a lesser-included offense of aggravated sexual assault of a child by penetrating the child's sexual organ if the same act is used to prove both the touching and the penetration." Id. Because the offenses are considered the same under the Blockburger Test, prosecution for such is barred by double jeopardy. Aekins , 447 S.W.3d at 281 ; accord Martinez , 524 S.W.3d at 347. cf. Banks v. State , 494 S.W.3d 883, 890-92, 898-99 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) (examining evidence of break in events, including evidence that complainant left between indecency and sexual assault, creating different acts at different times); Loving v. State , 401 S.W.3d 642, 649 (Tex. Crim. App. 2013) (concluding exposure of defendant's penis to masturbate, indecency by exposure, was a separate and distinct act from indecency by contact, causing the victim to touch his genitals).


The Defendant testified that he understood his constitutional right to remain silent. The Defendant said that he was satisfied with trial counsel and that counsel reviewed discovery materials with the Defendant and discussed the strengths and weaknesses of the State’s case. The Defendant said that counsel explained the defenses and that he understood that by pleading guilty he was waiving any factual or legal issues related to his case. The Defendant said counsel advised him that he could proceed to a jury trial if he wished. The Defendant said that counsel advised him of his potential punishment range and that he understood he faced the possibility of a much longer sentence if he proceeded to a jury trial. The court asked the Defendant if he knew that he faced a ten-year sentence on the <mask> charge alone, and the Defendant replied, “That convinced me, sir.” The Defendant said that no one threatened or forced him to plead guilty, and he acknowledged that pleading guilty was in his best interest and that he desired to do so. The Defendant said that he was not under the influence of alcohol, drugs, or prescription medication and that he had never been diagnosed or treated for any mental disease or defect. He agreed he was pleading guilty knowingly, freely, and voluntarily. He acknowledged that he had pleaded guilty previously and that those experiences helped him understand the constitutional rights he waived by pleading guilty. The court explained the process of a jury trial, including the Defendant’s presumption of innocence and the State’s burden of proving guilt beyond a reasonable doubt. The Defendant said that he knew he had an “absolute right” to proceed to a jury trial. The Defendant said that he had reviewed the waiver of rights packet with counsel and that he understood all of the information. The


At the hearing, the court questioned counsel whether appellant's admission to a probation violation and receiving an ESS sentence was a matter within the scope of section 1473.7. While appellant purportedly indicated he would have gone to trial had he known the immigration consequences of modifying his probation after his arrest in case No. SC194804, the trial court noted as a result of the probation modification, appellant avoided the consequences of a possible guilty finding in the more serious *879drug offense, which was dismissed under section 1385. Also, appellant was told by the same court, when he pleaded to the <mask>, the plea potentially would have immigration consequences. He still chose to proceed. The court noted the assault was possibly gang-related, which heightened its seriousness. Because the crime pleaded to was a strike, appellant may have been probation ineligible, yet he received probation. As a juvenile he had a prior assault and was on probation for receiving stolen property at the time of the assault plea. The temporal space between the section 496 probation and the new strike felony was but five months. Afterwards, appellant became a fugitive and had to be arrested on a bench warrant.


We conclude that deadly conduct, as a matter of law, is a lesser-included offense of the charged offense of <mask> by threat where it was alleged that appellant used or exhibited a motor vehicle as a deadly weapon. Because the court of appeals held otherwise, we reverse the judgment of the court of appeals and remand this case to that court for it to conduct the second step of the two-step lesser-included offense analysis.


Here, the court of appeals reasoned that, because <mask> is not a continuing offense, the on-going incident split into two discrete assaultive episodes when Appellant left the room to retrieve the water. The court of appeals believed it was the first assaultive episode, before Appellant left the bedroom, that was the assault pled in the indictment because it was during that first assault that Appellant struck Molien with his hands. Focusing thus on the initial assaultive conduct, the court of appeals concluded that, in order to justify a deadly weapon finding, a fact-finder would have to find the deadly weapon had been used or exhibited even as Appellant was striking Molien with his hands. Because there was no evidence that appellant used water at the same time that he was striking her with his hands, the court of appeals concluded, the evidence failed to show that the deadly weapon alleged was actually used "during the commission of the offense," as required by Section 22.02(a)(2).


I have found only one <mask> case where the everyday item held to have been used as a deadly weapon never made contact with the victim , and that case is easily distinguishable. In In re Jose R. (1982) 137 Cal.App.3d 269, 186 Cal.Rptr. 898, the defendant stuck a metal pin inside an apple and gave it to his teacher, but fortunately another student warned the teacher before she could eat it. ( Id. at p. 274, 186 Cal.Rptr. 898.) At trial, a medical expert testified about the severe injuries and infections that could have resulted from ingesting that particular pin. She also opined ingestion could have been fatal. ( Id. at p. 276, 186 Cal.Rptr. 898.) Based on that evidence, the court held the defendant had used the pin as a deadly weapon because, had the teacher ingested it as planned, she would have suffered grave injury. ( Ibid. ) Here, in contrast, the record *941contains no testimony about what could have happened had Koback's swing landed. Unlike ingesting a metal pin, which is sharp enough to draw blood upon slight contact, the type of the injury, if any, that would result from being hit in the midsection with a key like the one Koback used depends entirely on the force behind the swing.


The real party in interest, Angelica Hernandez, is charged by indictment in cause number 20130D02077 with three counts of <mask> of a child and one count of indecency with a child. The indictment alleged that Hernandez, acting in concert with Osvaldo Araiza, provided alcohol to her sixteen-year-old biological daughter, B.P., and to another child, and Araiza penetrated B.P.'s sexual organ with his finger and penis, contacted her sexual organ with his mouth, and touched her breast.


In two counts of a three-count indictment, Appellant, Teodoro Hernandez, was charged with <mask> with a deadly weapon and family-violence assault by strangulation. The aggravated-assault-with-a-deadly-weapon count alleged that Hernandez struck the victim on her head or body with his hands while he exhibited or used water as a deadly weapon. The evidence showed that Hernandez struck the victim on her head or body and that he strangled her, but it showed that he poured water down her throat while he was strangling her, not while he was striking her. The court of appeals held that the evidence was insufficient to sustain the aggravated-assault-with-a-deadly-weapon conviction, but on original submission, this Court reversed the judgment of the court of appeals and ordered Hernandez's aggravated-assault-with-a-deadly-weapon conviction reinstated.


MY BELIEF IS BASED UPON THE FOLLOWING FACTS: D. Arnold (Affiant) was assigned to investigate <mask> and reviewed offense report #161435712D written by Officer A. Deleon. Affiant was dispatched to 10500 Northwest Freeway, Houston, Harris County, Texas. Affiant learned from Officer A. Deleon that Cindy Davis (Witness) reported that on December 24, 2012 she observed two men (Complainants) lying injured on the side of the roadway with their hands tied and mouths duct taped. Affiant learned from HPD Officer A. Deleon that Complainants had apparent gunshot wounds to their bodies and had been transported to Ben Taub Hospital for treatment. Affiant spoke to Diane Deyoung who witnessed Complainants coming out of a white van license plate AV5-0784 before the [sic] continued down the road without stopping. Affiant learned from hospital personnel that Moses Glekiah (Complainant Glekiah) was recovering from gunshot wounds and Richard Merchant (Complainant Merchant) was in critical condition for his gunshot injuries. Affiant spoke with Moses Glekiah (Complainant Glekiah) and learned he and his friend Richard Merchant (Complainant Merchant) had agreed to engage in [sic] business transaction at 2501-C #2 Central Parkway Houston, Harris County, Texas with a male known as "Jerry." When Complainants arrived on December 24, 2012 at the business that they describe as an autoshop, they are grabbed by several males and held against their will. Complainant Glekiah reported that Suspects also stole their cash money $400 that Complainants had in their possession, wallets, cell phone and a suitcase/briefcase container belonging to Complainant Merchant. Suspect 1 poured gasoline on Complainants and held lighter near Complainants threatening to set them on fire. Suspect 1 then called two other Suspects who put Complainants in truck at gunpoint. Complainant Glekiah says that he felt in fear for their lives. Complainants jumped out of the van because they believed they were going to be killed. As Complainant [sic] leaped out of the vehicle they were shot by Suspects. Complainant Glekiah directed Affiant to autoshop where this Aggravated Assault and Robbery occurred at 2501-C *227#2 Central Parkway Houston, Harris County, Texas. Affiant researched the location and found the owner to be Charese Foreman. Affiant review computer databases and discovered that Charese Foreman is married to Nathan Ray Foreman. Affiant reviewed criminal history of Nathan Ray Foreman and found that he had been charged with autotheft, possession of prohibited weapon and delivery of cocaine. Affiant showed Complainant Glekiah a known photograph of Nathan Ray Foreman along with five other photos of similar looking males. Complainant Glekiah positively identified Nathan Ray Foreman as Suspect 1 who participated in punching Complainants, told other suspects what to do, poured the gasoline on Complainants and contacted 2 suspects to drive Complainant away from business. Affiant knows that gasoline and lighter are deadly weapons that can kill a person. Affiant believes that Complainants and Suspects DNA will be inside the Target Location along with property belonging to Complainant such as money, suitcase/briefcase, wallets, cell phone, identification cards. Also instrumentalities of the crime such as white van that transported Complainants, guns used to shoot Complainants, zip ties used to tie complainants may also be inside Target Location. The trial court denied appellant's motion to suppress.


But this analysis fails to consider all of the evidence. When focusing properly on all of the evidence presented at trial that might have supported the guilty verdict, we must also consider the evidence demonstrating the second assaultive event-during which Appellant actually used water. With a proper focus on all of the evidence that might have supported a guilty verdict, it becomes clear that the variance between the pleading and proof in this case is immaterial. If sufficiency of the evidence is measured against the second rather than the first assaultive event, then there does indeed appear to be a variance, but it is a variance that stems from the allegation in the indictment that Appellant struck Molien with his hands. The language of the <mask> count alleges "striking with the hands," but the testimony at trial showed that when Appellant returned to the bedroom with the water, he used one hand to choke Molien while simultaneously using the other to pour the water down *316her throat, and the evidence does not show that he "struck" her at that point in time.


Viewing the evidence in the light most favorable to the verdict, sufficient evidence allowed a rational jury to find, beyond a reasonable doubt, that Mitchell intended to threaten or knowingly threatened Deputy Shike with imminent bodily injury. Thus, the evidence is legally and factually sufficient to support Mitchell's conviction. See Carr v. State , No. 14-09-00322-CR, 2010 WL 2835663, at *5 (Tex. App.-Houston [14th Dist.] July 20, 2010, pet. ref'd) (mem. op., not designated for publication) (sufficient evidence supported intent for <mask> of peace officer where appellant pointed gun in officer's direction and gun was one foot from officer's face); Barnes v. State , Nos. 14-05-00144-CR, 14-05-00145-CR, 2006 WL 2548186, at *7-8 (Tex. App.-Houston [14th Dist.] Sept. 5, 2006, pet. ref'd) (mem. op., not designated for publication) (evidence that appellant wrestled for officer's gun, retrieved it, and shot it was sufficient to support requisite intent for conviction for aggravated assault of police officer, even though some evidence existed that appellant harbored suicidal thoughts).


Here, the two offenses at issue--the acquitted <mask> offense and the still-pending retaliation offense--clearly fit within Section 3.01 of the Texas Penal Code's definition of "criminal episode." The record reflects that the criminal episode began with the aggravated assault offense and shortly thereafter Appellant committed the retaliation offense in an attempt to intimidate the witnesses involved in the aggravated assault offense. The trial court properly recognized that proving the pending retaliation offense necessarily required putting on evidence of the acquitted aggravated assault offense. We agree with the trial court that the retaliation offense did not constitute a brand new fact pattern; but, rather, that it was a continuation of the same fact pattern.


The majority pays lip service to Aguilar's force-used test by citing it in their analysis, but they don't actually apply it. Instead, they rely on an opinion involving the offense of exhibiting a deadly weapon to evade arrest in violation of Penal Code section 417.8. ( People v. Simons (1996) 42 Cal.App.4th 1100, 50 Cal.Rptr.2d 351 ( Simons ).) But because that crime does not "turn[ ] on the nature of the force used" ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204 ) like an as-used <mask> does, it provides no support for their holding. Aguilar is binding California Supreme Court precedent we are required to follow. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456, 20 Cal.Rptr. 321, 369 P.2d 937.) The majority cannot escape this duty by applying a different test from a nonbinding lower court opinion that predates Aguilar .


(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent. .... (vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. .... (ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to: (3)(A) Have subjected any juvenile to aggravated circumstances. (B) "Aggravated circumstances" means: (i) ... [A] determination has been made by a judge that there is little likelihood that services to the family *599will result in successful reunification. At the termination hearing, it was established that Steven had been incarcerated for a total of nine or ten months during the fifteen months since emergency removal of the children. Most recently, Steven was in prison between December 14, 2016, and May 23, 2017, for violating the terms of his probation related to a 2012 conviction for <mask> committed against Kathy. For the probation violations, Steven was sentenced to three years in prison followed by a three-year suspended imposition of sentence. He was paroled on May 23, 2017. After his release, Steven moved into his father's house where he continued to reside as of the termination hearing held on July 10, 2017.


The added likelihood inquiry for everyday objects makes sense. While "all aggravated assaults are ultimately determined based on the force likely *337to be applied against a person" ( Aguilar , supra , 16 Cal.4th at p. 1035, 68 Cal.Rptr.2d 655, 945 P.2d 1204, italics added), we infer or assume a likelihood of great bodily injury in the case of inherently dangerous weapons because they are specifically designed to inflict such injury. In other words, the mere use of a deadly weapon while attempting to injure someone is sufficient to constitute <mask>. The same is not true, however, for golf clubs, car keys, and other generally innocuous objects. For these, we must look to the specifics to determine whether the defendant's actions were culpable enough to warrant the harsher punishment aggravated assault carries. That additional, factual analysis is clear cut: Was the force with which the defendant used the object likely to produce death or great bodily injury? ( Ibid . )


Mother’s husband testified that he is retired from the military and works as an independent contractor, taking occasional jobs facilitating military trainings. He said that he has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”), for which it is unclear if he has received treatment, and takes prescription medications for certain medical conditions, including tremors and chronic pain due to injuries from his military service. He answered affirmatively when asked if he and Mother stopped spanking the children “after Preston said something to his counselor at school and DCS came . . . out to [their] house.” He acknowledged that he may have on occasion told the children that he would “beat [their] butt.” He also explained that in 2017, he was charged with <mask>,4 but the charge was ultimately dismissed and he has no criminal record. He said that he and Mother participated in marriage counseling to work through their issues. He further testified, inter alia, that he helps Blake and Preston with their schooling, working extensively with Blake.


*367The law raises a presumption of an intent to kill, in a case where the means used by the assailant were such as, in all human probability) would have produced death ; and where had it ensued, such killing would have been murder. City Hall Rec. vol. 3, p. 73 But where an <mask> and battery was committed under such ciroumstances that had death ensued, it would have been murder on the part of the assailant; still, if it does not positively appear that any dangerous weapon was used, or that the means or manner employed in the commission of the offence, were such as were calculated to produce death, the jury are not bound to impútelo the defendant an implied intent to kill. Ibid. "*


*625At the hearing, defense counsel argued that Belden's performance was deficient in two ways. First, Beldan's bare advisement going through the Tahl form and stating that defendant could be deported was insufficient. Defendant pled guilty to an <mask>, which meant mandatory deportation. The evidence clearly showed Belden did not explain that pleading guilty to violating Health and Safety Code section 11378 meant certain deportation unless defendant could prove that he would be tortured in his home country. Moreover, Beldan failed to attempt to negotiate for a plea to a crime with less severe immigration consequences. In arguing the motion, defense counsel stated that if defendant "doesn't get this conviction vacated, he's going to get deported. The immigration judge has told us as much. The only reason he's still here is because of the infamous backlog in the immigration courts."


To determine “whether an offense is a crime of violence, ‘we apply a categorical approach, looking to the elements of the offense to determine whether the conviction constitutes a crime of violence.’” United States v. Smith, 928 F.3d 714, 717 (8th Cir. 2019) (quoting United States v. Furqueron, 605 F.3d 612, 614 (8th Cir. 2010)). To qualify as a crime of violence under the force clause, the question is “whether a conviction necessarily had ‘a physical-force element.’” United States v. Quigley, 943 F.3d 390, 394 (8th Cir. 2019) (quoting United States v. Schneider, 905 F.3d 1088, 1090 (8th Cir. 2018)). 2 Physical force is “violent force—that is, force capable of causing physical pain or injury to another person.” United States v. Parrow, 844 F.3d 801, 802 (8th Cir. 2016) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)). Lopez-Castillo’s <mask> conviction had such a physical force element.


Upon the law of self-defense, you are instructed that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other person's use or attempted use of unlawful force. .... Therefore, if you find from the evidence beyond a reasonable doubt that the defendant, Adrian Aaron Mendez, Jr., did cause the death of Jacob Castillo, as alleged, but you further find from the evidence, as viewed from the standpoint of the defendant at the time, that from the words or conduct, or both of Jacob Castillo it reasonably appeared to the defendant that his life or person was in danger and there was created in his mind a reasonable expectation or fear of death or serious bodily injury from the use of unlawful deadly force at the hands of Jacob Castillo, and that acting under such apprehension and reasonably believing that the use of deadly force on his part was immediately necessary to protect himself against Jacob Castillo's use or attempted use of unlawful deadly force, he stabbed Jacob Castillo, then you should acquit the defendant on the grounds of self-defense ....3 Mendez did not object to this charge. The jury acquitted Mendez of murder, but convicted him of the lesser-included offense of <mask>. Mendez was sentenced to seven years' imprisonment and assessed a $10,000 fine.


Appellant Sayantan Ghose appeals judgments of conviction for murder and <mask> with a deadly weapon. Appellant presents two identical issues in both appeals. First, he argues that the trial court erroneously omitted from the jury charge certain instructions limiting the right of a citizen to make an arrest, which appellant contends deprived him of the correct application of the self- defense statute. Because appellant concededly did not object to the jury charge on this basis, we hold the issue is waived. Second, appellant contends that legally insufficient evidence supports the jury’s rejection of his self-defense theory. Concluding that the evidence is legally sufficient, we overrule this issue.


For several reasons, I would have avoided that approach. First, the evidence that Appellant's hands impeded Melanie's breathing is arguably slim. Although it is true that portions of Melanie's testimony could be interpreted as evidence that Appellant's hands were impeding her breathing, the greater weight of the evidence supports the finding that the impediment to her breathing was caused by the water being poured down her throat, not by pressure from Appellant's hands. Second, the jury acquitted Appellant of the choking/strangulation charge in Count 3. Although we must ignore inconsistencies in the jury's verdicts, the fact that Appellant was found not guilty of the choking assault as alleged in Count 3 is troublesome. That acquittal undermines the strength of an <mask> conviction if we say that the underlying assault supporting that conviction is the same act of choking for which Appellant was acquitted. Finally, I disagree with the majority's conclusion that "exactly how Appellant used his hands to cause the bodily injury is inconsequential to the legal sufficiency analysis." A criminal defendant has the right to fair notice of the specific charged offense in order to be able to prepare a defense.19 It is bad precedent to uphold Appellant's conviction for Count 2 on the basis that it is supported by the same evidence that was used to support the charge Appellant was acquitted of. If, in evaluating sufficiency, we must view the verdict under Count 2 independently of the other verdicts, then shouldn't we view the evidence supporting the offense charged in Count 2 independently of the evidence supporting the offense charged in Count 3-at least under the unusual circumstances of this case?


At a minimum, after reviewing the record, we conclude that defendant in this case was a direct or active aider and abettor. He actually delivered serious blows with his fists and feet to the victim at the urging of Roberts, and in one statement expressed fear that he may have killed the victim. His hands were swollen when he arrived in Imperial Beach, consistent with a beating by fists. Even if the jury believed defendant's testimony-that after his own beating of the victim he left the scene when Roberts began beating the victim with a deadly or dangerous weapon-the killing would have been the result of defendant's <mask> committed while directly aiding or abetting Roberts' assault with a deadly weapon.


We provided an example of an immaterial variance in Johnson . There we gave a hypothetical involving a prosecution for the result-oriented offense of murder in which the indictment alleges death by stabbing. Id. at 296. If the proof at trial shows that the victim was instead bludgeoned to death, we said, this would not constitute a material variance because the manner in which the murder was perpetrated does not affect how many murder offenses occurred. Id. at 297. Because the different means of causing death do not result in separate offenses, the variance in pleading and proof would not be material and would not inform the hypothetically correct jury charge or implicate legal sufficiency. Id. at 298. Similarly, we reasoned, in a prosecution for <mask> under Section 22.02(a)(1) of the Penal Code, the gravamen of the offense is causing serious bodily injury. Id. at 298 (citing Landrian , 268 S.W.3d at 537 ). How that serious bodily injury was caused does not "help define the allowable unit of prosecution for this type of aggravated assault offense, so the variance at issue [in Johnson ] cannot be material." Id.


The record demonstrates that the court considered the totality of the circumstances and found that defendant did not deserve relief from his original sentence, only after the court balanced defendant’s extensive criminal history, defendant’s denial of any responsibility at trial and sentencing, and the circumstances of the underlying offenses, against the evidence of defendant’s postincarceration rehabilitation. Defendant’s extensive criminal record in New York and New Jersey, including five felonies, is replete with crimes of violence that were very serious, regardless of whether they would technically qualify as New York violent felonies. Among other crimes, defendant has been convicted of possession of a loaded handgun and ammunition, <mask> with a deadly weapon, and home invasion robbery and burglary of another drug dealer’s home, during which defendant covered a 12-year-old boy’s head in a pillow case. This last offense was committed after defendant absconded after being released on bail on drug charges in New York. Defendant also has prior convictions for possession of large quantities of drugs, including near a school, and drug selling paraphernalia. The instant crimes not only involved a large quantity of drugs, but also a reckless high-speed car chase that resulted in injuries to innocent persons, property damage, and the complete sealing off of the West Side Highway for hours.


The State petitioned this Court to review the court of appeals' conclusion that, by failing to apply the law of self-defense to the lesser-included offense of <mask>, the trial court committed jury-charge error. We do not understand the State to object to the court of appeals's harm analysis, but only its ruling that the trial court "erred" at all.12


The district court denied McIntyre's motion, pointing out that the Kansas Supreme Court overruled Murdock I in Keel. The district court found Keel established that pre- KSGA convictions were to be classified based on the comparable Kansas offense in effect at the time of the current crime of conviction. Under this framework, the district court reasoned that the Missouri robbery conviction was a person felony. The district court also reasoned that McIntyre's prior Missouri conviction for exhibiting a dangerous weapon was comparable to the Kansas crime of <mask>, a person felony. This court affirmed the district court's decision. State v. McIntyre, No. 116,004, 2016 WL 7324508, at *1 (Kan. App. 2016) (unpublished opinion) (McIntyre II).


A Madison County grand jury indicted the defendant, Johnny Jackson, Jr., for aggravated kidnapping, <mask> by strangulation, and domestic assault. After a trial, a jury convicted the defendant of aggravated assault by strangulation and domestic assault and acquitted the defendant on the charge of aggravated kidnapping. Following a sentencing hearing, the trial court imposed concurrent terms of fifteen years for aggravated assault and eleven months and twenty-nine days for domestic assault to be served in the Tennessee Department of Correction. The trial court also affirmed the total effective fine of $2500 imposed by the jury. On appeal, the defendant contends the trial court erroneously relied on an inapplicable enhancement factor and failed to find any mitigation, and therefore, erred in sentencing the defendant to the maximum term of fifteen years. Additionally, the defendant claims the trial court erred in affirming the fine imposed by the jury without conducting the proper analysis and review. After reviewing the record and considering the applicable law, we conclude the trial abused its discretion in applying one enhancement factor, failing to find any mitigation despite proof of the same in the record, and failing to conduct the proper analysis of the fine imposed by the jury. Therefore, we modify the defendant’s sentence for aggravated assault to thirteen years and remand the matter to the trial court for the limited purpose of properly reviewing the jury imposed fine.


*344A jury found appellant, Claudia Kristine Esquivel, guilty of the offense of murder1 and assessed her punishment at confinement for twenty-seven years and a fine of $10,000. In her second issue on appeal, she argues that the trial court, in its charge, erred in submitting to the jury the felony-murder application paragraph because it authorized her conviction for murder based on a spurious allegation of <mask>, which, as alleged, constituted "a cleverly disguised form of manslaughter" and is "a lesser-included offense of manslaughter by any other name." The panel reasoned that "[i]ntentional and knowing aggravated assault is not includable in manslaughter and is not a lesser-included offense of manslaughter." And, relying on the Texas Court of Criminal Appeals' opinion in Lawson v. State , 64 S.W.3d 396 (Tex. Crim. App. 2001), it concluded that the trial court's jury charge did not contain an invalid legal theory of felony murder.


I. Flores, a native and citizen of the Philippines, is a lawful per- manent resident of the United States. Last year, the Department of Homeland Security served him with a notice to appear, which charged him as removable under INA § 237(a)(2)(B)(i), 8 U.S.C. § 1227(a)(2)(B)(i), for being a noncitizen who was convicted of an of- fense related to a federally controlled substance. Flores had also previously entered a guilty plea in Georgia state court for aggra- vated assault under O.C.G.A. § 16-5-20(a)(2), for which he was sen- tenced to five years confinement which he was allowed to serve on probation. Flores filed an application for cancellation of removal. He argued in support of that application that he was eligible for relief, in part, because his Georgia <mask> conviction was not an aggravated felony for immigration purposes. That was so, he argued, because it could be committed with the mens rea of reck- lessness, and he was not sentenced to incarceration for a year or more. The government argued that Flores was convicted of an ag- gravated felony for immigration purposes because aggravated as- sault is a crime of violence for which Flores was sentenced to five years’ confinement. The government provided the judgment and conviction documents for Flores’s prior convictions, which re- flected that Georgia had charged him with aggravated assault be- cause he had assaulted someone with an object likely to cause seri- ous bodily injury. The immigration judge agreed with the USCA11 Case: 21-10514 Date Filed: 01/27/2022 Page: 4 of 10


Appellant was charged with kidnapping, aggravated residential burglary, possession of firearms by certain persons,2 <mask> on a family or household member, and first-degree terroristic threatening for events that took place at his former girlfriend's residence in Jacksonville on August 22 and 23, 2013. At trial in November 2016, Roshandra Nwozuzu (formerly Wesley) testified that appellant is her former boyfriend and had lived with her and her two children. On August 4, 2013, after an incident in which he held a boxcutter to her neck, appellant was given a trespass warning by the Jacksonville Police Department, advising him to stay off Ms. Nwozuzu's property. On the night of August 22, Ms. Nwozuzu returned home with her children and went to her master bathroom to shower. When she exited the shower, appellant was pointing a gun at her. Ms. Nwozuzu testified that appellant threatened to kill her, her children, and himself if she screamed, and she spent the next several hours trying to calm him. Early the next morning, she was able to convince him to let her leave for work. She took her nine-year-old daughter with her but was unable to wake up her teenage son, who was taking medication that made him sleep deeply. After leaving the house, Ms. Nwozuzu immediately called the police and met officers at a nearby park. The special-response team was able to use Ms. Nwozuzu's key to get into her residence and get her son out before alerting appellant to their presence. Appellant came out of the master bedroom and was placed under arrest. The State presented the testimony of officers who found a gun and a magazine under the bed in the master bedroom and a broken window. Ms. Nwozuzu's son, Rashaad Nelson, also testified at trial.


Per Curiam. On December 15, 1994, the respondent was convicted, upon a jury verdict in the New Jersey Superior Court, of the crimes of <mask> in the second degree, in violation of New Jersey Statutes Annotated § 2C:12-1 (b) (1); simple assault, in violation of New Jersey Statutes Annotated § 2C:12-1 (a); and possession of a weapon for unlawful purposes in the third degree, in violation of New Jersey Statutes Annotated § 2C:39-4 (d).


Finally, Appellant compares the sentence here with the sentences imposed in other <mask> cases. But we would engage in that kind of comparison only if Appellant overcame the first Solem test. Harmelin , 501 U.S. at 1005, 111 S.Ct. 2680 ; Lackey , 881 S.W.2d at 420-21. Accordingly, there is no reason to compare Appellant's sentence to those in other reported assault cases in Texas or elsewhere. Simpson , 488 S.W.3d at 323.


I realize comparison to cases with stronger facts can be of limited value in a substantial evidence review, however I believe these cases demonstrate what constitutes sufficient evidence of force in cases of <mask> with everyday objects. In each, the object was actually used in a manner likely to produce great bodily injury. And in most, the victims sustained injuries. Given Koback swung once at Agustin's clothed torso from a few feet away, he would have had to use quite a great deal of force to seriously injure Agustin with the short portion of the ignition end that protruded from his knuckles. The trial testimony is simply insufficient to show he did (or even could ) swing with such force.


COUNT 1-A [AGGRAVATED SEXUAL ASSAULT] [Hernandez] [d]id then and there intentionally or knowingly cause the penetration of the female sexual organ of Melanie Molien by [his] finger, without the consent of Melanie Molien, and in the course of the same criminal episode the defendant attempted to cause the death of Melanie Molien by strangulation and waterboarding. COUNT 1-B & C [AGGRAVATED SEXUAL ASSAULT] [Hernandez] [d]id then and there intentionally or knowingly cause the penetration of the female sexual organ of Melanie Molien by [his] finger, without the consent of Melanie Molien, and [Hernandez] did then and there by acts or words threaten to cause, or place, Melanie Molien in fear that death or serious bodily injury would be imminently inflicted on Melanie Molien, and said acts or words occurred in the presence of Melanie Molien. COUNT 1-D [AGGRAVATED SEXUAL ASSAULT] [Hernandez] [d]id then and there intentionally or knowingly cause the penetration *326of the female sexual organ of Melanie Molien by [his] finger, without the consent of Melanie Molien, and in the course of the same criminal episode [Hernandez] used or exhibited a deadly weapon, to-wit: water. COUNT 2 [<mask> WITH A DEADLY WEAPON] [Hernandez] [d]id then and there intentionally, knowingly, or recklessly cause bodily injury to Melanie Molien by striking the victim's head or body with [his] hands, and the defendant did then and there use or exhibit a deadly weapon, to-wit: water, during the commission of said assault. COUNT 3 [ASSAULT FAMILY VIOLENCE/STRANGULATION] [Hernandez] [d]id then and there intentionally, knowingly, or recklessly cause bodily injury to Melanie Molien, a person with whom the defendant has or has had a dating relationship, by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of Melanie Molien by applying pressure to the throat or neck and blocking the nose or mouth of Melanie Molien. The jury found Hernandez guilty of aggravated assault with a deadly weapon "as alleged in the indictment" and guilty of the lesser-included offense of sexual assault, but it acquitted him of family-violence assault by strangulation. The jury recommended that Hernandez be placed on community supervision for 10 years for the sexual-assault offense, but it sentenced him to seven years' confinement for the aggravated-assault-with-a-deadly-weapon offense.


Petitioner was arraigned on a felony information with two counts of inflicting corporal injury to a cohabitant ( Pen. Code, § 273.5, subd. (a) ; counts one and three), one count of <mask> ( Pen. Code, § 245, subd. (a)(4) ; count two), one count of making criminal threats ( Pen. Code, § 422, subd. (a) ; count four), and one count of stalking ( Pen. Code, § 646.9, subd. (a) ; count five). The information alleged personal use of a deadly weapon ( Pen. Code, § 12022, subd. (b)(1) ) with respect to count three, two prior serious felony convictions ( Pen. Code, § 667, subd. (a)(1) ), prior strikes ( Pen. Code, § 1170.12, subd. (c)(2) ), and eight prior prison terms ( Pen. Code, § 667.5, subd. (b) ).


*309Evidence was introduced to show that on March 20, 2017, appellant had pleaded guilty to second-degree battery and was sentenced to sixty months' probation. However, her probation was subsequently revoked, and on July 17, 2017, she was sentenced to serve forty-eight months' incarceration. In a separate case, appellant pleaded guilty to <mask> and second-degree battery and was sentenced on June 13, 2017, to serve sixty months' incarceration. In yet another case, appellant pleaded guilty to second-degree battery and possession of drug paraphernalia to ingest, inhale, etc., and was sentenced on October 30, 2017, to serve sixty months' incarceration.


Although it is listed as his second argument on appeal, Mr. Harris argues that there was insufficient evidence to support his conviction for <mask>. When an appellant challenges the sufficiency of the evidence, we review the sufficiency argument prior to a review of any alleged trial errors. Cogburn v. State , 2016 Ark. App. 543, 2016 WL 6609490. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence forceful enough to compel a conclusion with reasonable certainty without resort to conjecture. Breedlove v. State , 62 Ark. App. 219, 970 S.W.2d 313 (1998). We review the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Morton v. State , 2011 Ark. App. 432, 384 S.W.3d 585.


To allow this would make murder out of every <mask> that results in a death. It would relieve the State of the burden of proving an intentionally or knowingly caused death in most murder cases because murder is usually the result of some form of assault. Such a *345result has been rejected in the vast majority of jurisdictions throughout the United States where it is held that a felonious assault resulting in death cannot be used as the felony which permits application of the felony murder rule to the resulting homicide. Id. In support of his position, Odom quoted then Chief Judge Cardozo:


In my determination of the “ materiality ” of the false testimony which was permitted to stand uncorrected, I am not influenced by my 1962 findings that Lococo committed perjury not alone in particular details but in his total testimony concerning the part played by petitioner Yamin in this crime. Nor am I influenced by the previous finding that Lococo suborned the perjurious testimony of the only non<mask> witness in the case (see pp. 41-45 of 1962 opinion).


The similarity of the tactics used by Scott support that joinder was proper as a matter of law. Several other cases support this conclusion. See State v. Vinson , 834 S.W.2d 824, 827 (Mo. App. E.D. 1992) (finding it proper to join two offenses when both offenses involved the robbery of a service station/food mart in St. Charles within a two-month period where defendant drew a resolver on the cashier, walked behind the counter, removed the case drawer, and fled from the store to a waiting vehicle); State v. Forister , 823 S.W.2d 504, 510 (Mo. App. E.D. 1992) (finding joinder proper where all four robberies were committed in St. Louis County within a three-week period and in each instance defendant drove a red 1963 Chrysler as a getaway car for the same <mask> who displayed a gun and demanded money); State v. White , 755 S.W.2d 363, 367-68 (Mo. App. E.D. 1988) (concluding joinder of two separate robberies was proper where in both robberies the robber was a thin, black male, who displayed a handgun and announced a robbery; ordered the victims to put their things onto the table; herded the victims into the bathroom(s) at gunpoint; and ordered one victim to hand over his automobile keys before fleeing in the that vehicle); State v. Sims , 764 S.W.2d 692, 696 (Mo. App. E.D. 1988) (finding joinder of twenty counts arising out of ten separate criminal episodes proper where the crimes all occurred in south St. Louis within a three week period and in each incident a man entered a business, drew a handgun, produced a bag from his waist area and demanded the employee fill the bag with money).


In the context of two accomplices who testify at trial, we have held that "it is a fundamental principle that the testimony of one <mask> witness cannot corroborate another accomplice witness' testimony," although we never explained the legal basis for that rule. Chapman v. State , 470 S.W.2d 656, 660 (Tex. Crim. App. 1971) (citing 24 Tex. Jur. 2d 331, 331 (1965) ); see Roberts v. State , 44 Tex. 119, 123 (1875) (citing 1 Waterman's Archbold on the Practice, Pleading and Evidence in Criminal Cases § 154 (1853) (in turn citing Rex. v. Noakes , 5 Car. & P. 326 (1832) ) ) ("If ... two or more accomplices be examined, the evidence of one is not deemed confirmed by that of the other, but the evidence of both requires to be confirmed by other testimony."). In Noakes , a proceeding of the Old Bailey, Justice Littledale explained that "[t]wo of [the defendant's] accomplices speak directly to him. If these statements were the only evidence against him, I should not advise you to convict upon their testimony." Noakes , 5 Car. P. at 328.


In People v. Goodman (170 App. Div. 30), the court held that the requirement of the statute is that corroboration must be by evidence tending to connect the defendant with the commission of the crime and facts claimed to be in corroboration of the testimony of an <mask> have no significance as establishing or tending to establish the commission of a crime if consistent with lawful conduct.


In Hall’s case, 1 C. H. Rec. 57, 59, it was said, a conviction may follow, though, the testimony of the <mask> stands uncorroborated. Quers. And See U. S. v. Tom Jones, 2 Wheeler’s Crim. Cas. 451 to 461 *750Although the satne rule is recognized in Englahd, it haá beeii só much meliorated iñ thé practice, it may now hé said, that unless the testimony oí an accomplice is corroborated, id some material part by unimpeachable evidence, the judge should advise the jury to acquit the prisoner, and if ho should neglect so to* advise thé jury, dr thé jury disregard stich advice, and a conviction followed) the conviction would be in either case at variance with the authorities, Mid be regarded as illegal. See 1 Phil. Ev 30, et. seq.


We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Snider v. State , 2010 Ark. App. 694, 378 S.W.3d 264. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial; 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 supporting the verdict. Id. A jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal-that is a job for the finder of fact, not the appellate court. Foster v. State , 2017 Ark. App. 63, 510 S.W.3d 782. Arkansas law is clear that a conviction cannot be had in any case of felony on the testimony of an <mask> unless it is corroborated by other evidence tending to connect the defendant with the commission of the offense. Procella v. State , 2016 Ark. App. 515, 504 S.W.3d 686.


In the present case, as in People v Smith (supra), the court delivered a charge on <mask> liability. The court also charged the jury that, "in this case, the handgun which it is alleged that the defendant displayed is the handgun which was allegedly displayed by * * * the coperpetrator in this case”. This was the theory of liability presented to the jury, even though the first count of the indictment specified that it was "the defendant [who] displayed what appeared to be a handgun”.


The corroboration requirement in both statutes refers to "other evidence," but the statutes do not refer to each other. The "other evidence" requirement makes sense when there is testimony at trial from only an <mask> or a "jail house" informant, but what if there is-as in this case-testimony from an accomplice and a "jail house" informant? Can the accomplice's testimony corroborate the "jail house" informant's testimony and vice versa? The language of the statutes indicate that they could, but I am not convinced that is what the legislature intended because such an interpretation would seem to undermine the policy reason for the existence of both statutes. If the statutes exist to ensure that a person is not convicted on only unreliable testimony, why would it be okay to allow that so long as two unreliable witnesses testify instead of only one?


The primary issue is whether, in an enterprise corruption trial, each criminal act alleged in the pattern of criminal activity must be corroborated pursuant to CPL 60.22. This issue arose throughout the course of this trial in the context of the statutory mandate of CPL 300.10 (6),1 defendants’ motion for a trial order of dismissal pursuant to CPL 290.10, and in connection with my jury instructions, and requires close scrutiny of the application of New York’s <mask> corroboration requirement to the enterprise corruption statute.


It is apparent that a court confronted with the facts in Teal (supra), would reach a contrary result under the revised Penal Law. The defendant who solicited perjured testimony would be culpable regardless of the legal impossibility2 of commission due to immateriality of the testimony solicited. (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 110.10, p 320). Moreover, as anticipated by the court in Teal (196 NY, at p 382), the revised Penal Law emphasizes the intent of the accused as much as the result of his conduct, so that what formerly may have constituted subornation of perjury is now subject to prosecution as criminal solicitation, attempted perjury or perjury as an <mask>, depending upon the proximity of the defendant’s conduct to his intended objective to offer false testimony (see, People v Mohammed, 122 Misc 2d 504, 505 [Sup Ct, NY County 1984]; Sobel, supra, at 271-272; compare, Hammer v United States, 271 US 620, 628 [1926]).


This implied promise arises from the consideration, that - the witness, who is not bound to ¿riminate himself, does so in order to discover greater offenders; and upon performance of the condition to the satisfaction of the court, he acquires an equitable title to a pardon. The practice in England is, where the <mask> is in custody, for the counsel for the prosecution to move that the accomplice be taken before the grand jury, pledging his own opinion .after *748a perusal of the facts of the case, that his testimony is . , t- . ’ essential. It, however, an accomplice be taken before the r grand jury by means of a surreptitious order, the indictment will still be valid, as it seems to be a general rule, that the means by which evidence'was obtained will be no objection to the evidence itself. And in the case of the King v. Lee, (Northamp. Ass. 1818,) where .the question was, whether the accomplice who had been taken before the grand jury could legally be convicted, the judges were of opinion that ■he might, but some doubted. (Leach’s L. 184. 2 Starkie on Evid. 22, 3.)


The attorneys' arguments further helped to cure any instructional error. ( Young , supra , 34 Cal.4th at p. 1202, 24 Cal.Rptr.3d 112, 105 P.3d 487.) The prosecutor did not reference Martinez's burden to prove that Smith was his <mask>. And he reiterated that he had the burden to prove each element of the charged crimes beyond a reasonable doubt. Counsel for Martinez argued CALCRIM No. 334 did not apply because he committed no crime; Smith alone assaulted M.C. She also argued that Smith was not a credible witness and that the jury should view his testimony skeptically based on his guilty plea. Considered in light of the whole record, we see no reasonable likelihood that the jury misunderstood and misapplied the trial court's instructions.


For the foregoing reasons, this court holds that the testimony of an <mask> must be corroborated by such other evidence as tends to connect the defendant with the commis.sion of the crime (Code Crim. Pro., § 399 ; People v. Gibson, 301 N. Y. 244) regardless of whether the accomplice is under or over the age of 16 years, and this corroboration must be done even in the proceedings before the Grand Jury (People v. Nitzberg, 289 N. Y. 523).


Donald J. Mark, J. This was an application by the defendant who was charged with two counts of murder, second degree, intentional murder and depraved indifference murder, pursuant to People v Gonzalez (68 NY2d 424) and its progeny, for a "missing witness” charge, because of the prosecutor’s failure to produce at trial as his witness an <mask> of the defendant.


In fact, in cases which involve street encounters, but which come to a different result from those cited above, the deter*708mining factor appears to be such a perceived danger. In People v Jenkins (87 AD2d 526) the police were engaged in arresting a man whom they had more than probable cause to believe to be an armed bank robber in a high crime area. Defendant was the suspect’s sole companion and the police suspected that he may have been an <mask>. The court stated that: "Quite apart from that suspicion, in the circumstances of this case, the police had a right to assure their own safety during the arrest they were making and to prevent possible interference with the arrest. To that end they were justified in frisking the defendant (as well as the identified robber) to determine whether defendant was armed, and if armed, to disarm him. As it turned out, both men were armed with loaded pistols. In the exigent circumstances with which they were confronted, the police acted reasonably.” (Supra, at 526.)


. Of course, the level of corroboration varies according to its purpose. Corroboration of <mask> testimony requires evidence tending to connect defendant with the commission of the crime. Unsworn witness testimony must be corroborated both by evidence tending to link the defendant to the crime in addition to evidence tending to establish that the crime was committed (People v Groff, 71 NY2d 101, 109).


Sharon M.J. Gianelli, J. The defendant is charged with one count of assault in the third degree, in violation of Penal Law § 120.00 (1), and one count of petit larceny, in violation of Penal Law § 155.25, based on allegations that the defendant assaulted the complainant and stole his cell phone. More specifically, the People allege that on June 9, 2008, in front of 28 Felton Avenue, Valley Stream, New York, the defendant and another, having followed the complainant home after an apparent road rage incident, exited a car, approached the complainant, and struck him numerous times about his body. Further, when the victim tried to call 911, the defendant and his unidentified <mask> took the complainant’s cell phone and threw it away. According to the complainant, “I was left with a swollen jaw, bruised chest and ribs, cuts and scrapes to both legs and pain and swelling to both my arms and substantial pain in my whole body due to the beating.”


The rule of law uniformly followed is that a conviction cannot be had on the testimony of an <mask> unless his testimony be corroborated by such other evidence as tends to connect the defendant with the commission of the crime. (Code Grim. Pro., § 399.) After reading a substantial part of the testimony given before the Grand Jury it is clear to this court that the evidence produced was legal and sufficient in depth to justify the finding of the indictments herein. Therefore, this motion to examine the minutes of the Grand Jury be and is hereby denied.


The defendant was convicted of robbing a taxicab driver after the defendant and an unapprehended <mask> were driven as passengers to a desolate area at night. In this single eyewitness case, in which the record is barren of any other evidence connecting the defendant to the crime, a review of the complainant’s testimony reveals that he did not have a good opportunity to view the perpetrator at the time of the crime, and that his degree of attention towards the perpetrator was not high. Additionally, the complainant’s description of the perpetrator did not accurately describe the defendant, and his level of certainty at the initial police identification procedure was, by the complainant’s own admission, only ”80%”. Further, there was evidence that the complainant was under pressure by his employer to prosecute this case upon *255pain of losing his job, and that the complainant had offered to drop the charges in return for money. The length of time between the crime and the police lineup was almost two months, and during the trial the complainant hesitated in identifying the defendant in court. The complainant, who had testified that the perpetrator weighed 175 or 180 pounds, stated at trial that the defendant looked much thinner than he had remembered. This contrasted with credible evidence at trial that the defendant had never weighed more than 125 pounds. In addition, the defendant had no prior criminal record, was a high school graduate with a part-time job, was engaged to be married, and had a stable family history. He presented a character witness who had known him since he was a child, and presented a credible alibi defense.


In sum, I find that the confluence of factors — the telephone calls between Jack Buccafusco, Michael Giammarino and defendant Macklowitz where Macklowitz is referred to as "Duane”, the undercover’s purchases from the Romanos and the accurate documentation of those sales in the records, and the interrelationship between the computer records of "MIM” and "Mike M” and the ledger book entries of "Duane”— corroborate the accomplice’s testimony and tend to connect the defendant to the possessory crimes with which he is *248charged. The ledger books and computer records, although prepared by Giammarino at the behest of the codefendants, do not depend on him for their interpretation. Accordingly, I find that the dictates of the <mask> corroboration statute are satisfied. Defendant’s motion to dismiss the possessory counts is denied.


The People’s theory of the case highlighted the actual conflict. The prosecutor’s theory was that the boyfriend was a prime mover in the conduct that resulted in the commission of the crime charged. While he was not charged as an <mask>, his testimony was crucial in explaining how it was that the defendant’s allegedly false statements came to be known by the police and whether the defendant’s conduct caused the events that occurred. When called by the People as a witness, the boyfriend would have been subject to cross-examination to impeach his credibility. To represent the defendant, counsel would have necessarily questioned the boyfriend about his prior criminal record, any underlying information about that record, and any prior bad acts.


How far must the corroborative evidence go ? It is not necessary that the corroborative evidence should of itself be sufficient to show the commission of a crime, nor that the whole case should be proved outside of the evidence of the <mask> nor that the corroborative evidence should be wholly inconsistent with the defendant’s innocence. It is sufficient if it tends to connect the defendant with the commission of the crime and comes from an independent source and goes to some material facts tending to show the commission of the crime, and that the defendant was implicated in it and that it consists of something more than suspicious circumstances. See People v. Hooghkerk, 96 N. Y. 149; People v. Plath, 100 id. 590; People v. Ogle, 104 id. 415; People v. Elliot, 106 id. 292; People v. Mayhew, 150 id. 346, 353; People v. Winant, 24 Misc. Rep. 361.


It is axiomatic that "no trial can commence until a defendant is properly represented—and therefore until any conflict of interest has been resolved” (People v Sydney, supra, at 764; see also, People v Cortes, 80 NY2d 201). Thus, the People should not be charged with causing a delay over which they had no control, nor with the time it took to have an attorney appointed for the defendant’s <mask> pursuant to County Law article 18-B (see, People v Cortes, supra; People v Sydney, supra). I find People v McIntosh (173 AD2d 490), cited by my colleagues, distinguishable in that, there, the People had exclusive control over the delay occasioned by their filing and subsequent withdrawal of an appeal.


A declaration against penal interest is in the nature of a confession (see, People v Brensic, 70 NY2d 9 [a custodial confession of a nontestifying <mask> may be admitted as a declaration against penal interest against a defendant]), and in this analogous situation either side is allowed to proffer such evidence.4 Thus, a declaration against the penal interest which tends to exculpate the defendant is admissible on the part of the defendant (People v Brown, 26 NY2d 88). Conversely, a declaration against the penal interest may be offered by the People to incriminate a defendant (People v Maerling, 46 NY2d 289).


There is nothing improper in a plea agreement that requires an <mask> to testify truthfully. (People v. Gurule (2002) 28 Cal.4th 557, 616-617, 123 Cal.Rptr.2d 345, 51 P.3d 224.) Moreover, there is nothing improper in advising a jury that one condition of a plea agreement is that the accomplice must testify truthfully and that the plea agreement will not be honored if he or she does not. (People v. Bonilla (2007) 41 Cal.4th 313, 335, 60 Cal.Rptr.3d 209, 160 P.3d 84.) This is not a case where the plea agreement either required that an accomplice testify in a certain substantive manner (see People v. Gurule (2002) 28 Cal.4th 557, 615, 123 Cal.Rptr.2d 345, 51 P.3d 224 ) or the prosecutor in any manner vouched for the credibility of the accomplice based on information outside the record (see Bonilla , at p. 337, fn. 9, 60 Cal.Rptr.3d 209, 160 P.3d 84 ).


• Teamer admitted his role in the robbery and identified Steward as <mask> One and Bailey as Accomplice Two. Over the course of two habeas hearings, which were conducted three years apart from each other and over a decade after the robbery, Teamer steadfastly testified that Miles was not involved despite withering cross-examination. While Teamer had nothing to lose by claiming Miles was not involved, it was not shown that Teamer had anything to gain. • Steward admitted his role in the robbery as Accomplice One and said that he committed the crime with Teamer (Little K.O.) and Bailey (Baby K.O.). Steward remembered that day specifically because it was his 19th birthday. Steward was not clear on several details of the robbery, but neither was Teamer, who we know for sure was present. Steward *794also steadfastly testified that Miles was not involved despite withering cross-examination during the course of two habeas hearings. While Steward had nothing to lose by admitting his involvement in the robbery (due to the statute of limitations), he also appears to have absolutely nothing to gain. Further, years later, Patlan and Gomez tentatively identified Steward as Accomplice One. • Bailey admitted his role in the robbery in a declaration. His account was largely consistent with Teamer and Steward. In an interview conducted by the Fullerton detective in a Texas prison, Bailey repeatedly and emphatically stated that Miles was not involved. Bailey was also not clear on all of the details of the robbery, but neither were Teamer and Steward. The detective observed Bailey with Teamer days after the robbery. Teamer was apparently Bailey's mentor in the gang. • Several eyewitnesses testified that Miles was in Las Vegas on the day of the robbery. Miles was arrested in Las Vegas. The testimony of Miles' mother, father, and son, regarding the date of his arrival in Carson and his subsequent phone calls to Las Vegas were corroborated by flight and telephone records. However, the jury did not get to consider those records because they were not admitted into evidence, and the prosecutor argued the lack of "hard evidence" during her closing argument while questioning the validity of Miles' alibi witnesses. Further, it would not make sense to fabricate such a complex story. • While Miles is five feet, nine inches tall, and fits the initial height description of Accomplice Two, Gomez later told the detective that she thought the two robbers were close to the same height. Further, it appears likely that Gomez and Patlan may have had some effect on each other's descriptions, at least to some extent. For instance, when the 911 operator asked Gomez the color of the suit that Accomplice One was wearing, Gomez said to Patlan, "Was it a brown color ..., the suit? What color suit was ... green? A dark green." • The witnesses described all of the robbers as being in their 20's. On the date of the robbery, Teamer was 25 years old, Steward was 19 years old, and Bailey was 20 years old. Miles was 32 years old on the day of the robbery, which also tends to corroborate the habeas testimony that Miles was never a close confidant of either Teamer, Steward, or Bailey. • Miles' testimony about how he learned of the identity of Steward was very detailed and identified multiple witnesses, among them: Dungey, Prince, and Steward. If Miles and Steward deliberately fabricated this story, it would defy logic to name multiple other witnesses. Further, the corroborative testimony was particularly compelling because of each witness' level of detail and the fact that Dungey and Prince had apparently nothing whatsoever to gain by testifying. In sum, we find it more likely than not that the confessions of Teamer, Steward, and Bailey would have changed the outcome of the trial; that is, either an acquittal or a deadlocked jury.


The defendant is charged under indictment No. 2841/09 with, inter alia, criminal possession of a controlled substance in the third degree (Penal Law § 220.16 [12]). It is alleged in this case that on July 3, 2009, at about 11:10 p.m., the defendant was seated in the driver’s seat of a 1998 Lincoln Town Car in the vicinity of University Avenue and West Tremont Avenue, in Bronx County, and that a bag of crack cocaine, which had an aggregate weight in excess of one eighth of an ounce, along with a small amount of marihuana were inside the car. Another individual in the car was indicted as the defendant’s <mask>. About a month later, on August 9, 2009, the defendant and three other individuals were arrested and charged with criminal sale of a controlled substance in or near school grounds. (Penal Law § 220.44 [2].) In that case, indictment No. 3320/09, the defendant is alleged to have handed a bag of heroin to an undercover police officer in exchange for money in front of 1895 University Avenue in Bronx County. It is also alleged that several accomplices directed the undercover officer to the defendant; one told the officer to “try the car” to see if the defendant was there. The defendant exited 1895 University Avenue just prior to the alleged sale; he also lives in that building.


The court properly declined to give an <mask> corroboration charge regarding one of the People’s witnesses. There was no evidence that she was involved in any of the facts or conduct constituting the offenses charged (see People v Sweet, 78 NY2d 263 [1991]), and no basis on which to submit to the jury the issue of whether she was an accomplice. The witness was only defendant’s accomplice in the commission of separate criminal *567activity that preceded the crimes at issue (see e.g. People v Cruz, 291 AD2d 1 [1st Dept 2002], lv denied 97 NY2d 752 [2002]). We perceive no basis for reducing the sentence.


After asking Juror No. 8 a few more questions, the court said, "There was a concern that at least as to one jury instruction that you indicated that you couldn't follow that particular instruction."22 Juror No. 8 replied that he had never said such a thing. The court then asked whether Juror No. 8 knew which instruction the court was referring to, and *31Juror No. 8 responded, "It was just mentioned. And I said that is not what I'm doing. I believe I'm following the law." The court then asked, "And in particular the instruction that we were apprised or I was just apprised of was the instruction regarding <mask> testimony requiring corroboration. Has that been discussed?" Juror No. 8 responded that it had been discussed several times, and he believed that he had expressed his opinion.


*969Here, the defendant was convicted of multiple counts of robbery in connection with three commercial establishments in April of 2008. He was also convicted of possession of a gun recovered upon his arrest the following month. At issue on this appeal are robberies relating to a mini market. The defendant’s convictions were based on a theory of <mask> liability, as it was undisputed that the defendant was not present in the store with his accomplices. The defendant was found guilty of acting as an accomplice with regard to the robbery involving property taken from the store, but was acquitted of robbing an employee at that location.


Mr. Booker was charged with and pleaded guilty to acting with four others in committing assault in the first degree. A person is guilty of assault in the first *529degree if the person "attempts to kill or knowingly causes or attempts to cause serious physical injury to another person." Section 565.050. A person is an <mask>, and therefore criminally responsible for the conduct of another, when "[e]ither before or during the commission of an offense with the purpose of promoting the commission of an offense, he aids or agrees to aid or attempts to aid such other person in planning, committing or attempting to commit the offense." Section 562.041.1(2).


The State charged Rainey with one count of the class A felony of child abuse in violation of § 568.060.2 The State alleged that Rainey had recklessly caused Victim to suffer serious physical injury resulting in her death. Following trial, the jury found Rainey guilty of the lesser-included offense of assault in the third *919degree on a theory of <mask> liability. At the sentencing hearing, the trial court granted Rainey's Motion for Judgment of Acquittal Notwithstanding the Verdict of the Jury.


Before analyzing this evidence with a view to testing its sufficiency in the light of the quantum of the proof required and the points to which that proof must go, time will be saved by considering at the threshold whether or not on the felony charge Cartwright is to be considered as an <mask> of the defendant, for upon the decision of that question depends in part the quantum of proof, if any, required outside of the evidence of Cartwright. “ An accomplice is an associate in crime, a partner or partaker of the guilt, any participant in an offense.” People v. Winant, 25 Misc. Rep. 361, 363, Dickey, J. “ One culpably implicated in the commission of the offense.” People v. Vedder, 98 N. Y. 630. “ An accomplice is a person involved, either directly or in*120directly, in the commission of a crime. To render him such he must in some manner aid or assist or participate in the criminal act, and by that connection he becomes equally involved in guilt with the other party by reason of the criminal transaction.” People v. Smith, 1 N. Y. Crim. Rep. 72, 75, Daniels, J. “ To constitute an accomplice one must be so connected with a crime that at common law he might himself have been convicted either as the principal or as an accessory before the fact. To warrant such a conviction the one accused must have taken part in the perpetration of or preparation for the crime, with intent to assist in the crime.” People v. Zucker, 20 App. Div. 363.


In our case, there is neither claim nor proof that Boyce was an <mask>. Additionally, there is no allegation that she is receiving any favorable treatment, nor that the District Attorney will forego prosecution should evidence be developed that she was actually involved in the commission of the crimes. Consequently, the need for confidentiality far outweighs the necessity for disclosure here.


In People v. Vedder (98 N. Y. 630, 632) our Court of Appeals clearly held: “ It is quite clear that the woman spoken of in the statute is not regarded as one of the persons who could be guilty of the crime described in the 294th section [Now Penal Law, Section 80] and that she could not, therefore, be indicted under that section. Even though there may be no difference in a moral point of view as to the guilt imputable to the respective participators in the act of abortion, yet the statute has made a distinction in the eases, and the one cannot be punished as a *460principal or <mask> in the crime which is attributable by the statute to the other ’ ’.


When we consider that Mr. Perkins had been the assistant district attorney in charge of grand jury matters for a great many years, and that he was personally and favorably known to the jurors and highly regarded by them for his excellent work, it must be admitted that this testimony was extremely damaging to the defendant. It also tended to corroborate Low by a reference to statements made by him on a previous occasion. It was not claimed that Low was an <mask>; and in *142my opinion, there was a plain violation of the legal rules referred to by the Court of Appeals in the case of People v. Jung Hing (312 N. Y. 393).


It will be noticed that none of the cases cited relates to offenses such as it is claimed were committed by Cartwright and Acritelli. It will also, however, be noticed that while the cases cited differ widely from each other in character, they lay down the same determining tests to ascertain whether or not a given witness is to be regarded as an <mask> of a defendant. These tests it therefore seems proper to apply by analogy to the case at bar. First, then, the test is not whether both parties have been guilty of the identical crime. Bribing a juror or offering to *121bribe a juror is a crime by itself under section 71 of the Penal Code, and the acceptance of a bribe by a juror is a separate offense, made so by section 72 of the Penal Code. The separate nature of the offenses (if they are separate) does not prevent one party from being the accomplice of the other. People v. Winant, supra. Second, the reason why the victim in the abortion case does not stand legally in the position of an accomplice is that she could not be indicted for abortion. People v. Vedder, supra, and cases cited. Though guilty of an offense, she was punishable by a different penalty. In the liquor case (People v. Smith, supra) the criminal act was the sale. It was not a crime to huy, and the purchaser incurred no criminal relation to the act of selling. In the arson case, the act of the alleged accomplice was itself innocent, and while, as stated, it tended to assist in the perpetration of the crime, the incentive or motive for it was not to aid in its commission. If under the evidence produced before the grand jury it can be said with respect to the felony charge that the defendant committed a crime it was a crime suggested to him by the witness Cartwright. The criminal purpose, if conceived at all by the defendant, had its inception in the first, or September, conversation between Cartwright and the defendant. That conversation was initiated by Cartwright and that which it is claimed may have involved the suggestion of an offense came from Cartwright to the defendant. The conversation had been solely about Italian banking methods, when Cartwright, without suggestion by the defendant, asked to be allowed to have a room in the defendant’s house at 186 Lafayette street, he, Cartwright, having at the time in his mind a registration from such house in the event of the defendant’s assent to his taking a room. Cartwright thus conceived, according to his testimony, a purpose to commit a crime, and the indictment has been found upon the theory that he suggested to the defendant the commission of a crime, which crime was to be consummated by the concurrent act of Cart*122wright and the defendant, the defendant’s part being, as charged in the indictment, to aid, assist and abet Cartwright in his, Cartwright’s criminal act. Cartwright thereafter performed the criminal act, and because he performed the criminal act (to wit, the act of illegal registration) the defendant has been indicted, charged by reason of his alleged connection with such act, as having aided, assisted and abetted in its commission. How can it then be said that Cartwright was not, if his evidence is to be believed, an associate in the crime, a partner or partaker of the guilt, a participator in the offense, one culpably implicated in its commission, one both directly and indirectly involved in its commission, one who has aided or participated or assisted in it with intent to assist in the commission of a crime, one'equally involved in its guilt, one indictable for it under section 29 of the Penal Code, but for the immunity given him from the circumstances under which he testified by section 41q of the Penal Code ? It is not deniable that if Cartwright’s evidence is to be believed he was also guilty of another crime, to wit, a violation of subdivision 2 of section 41a of the Penal Code. It is also not to be denied that subdivision 5 of section 41a of the Penal Code defines a separate and distinct offense. It is not to be denied, moreover, that such an offense is one which may be committed by one person alone, and thus under circumstances where there is- no accomplice. It- is so committed where the crime consists of commanding " or " advising ” another to violate any of the preceding subdivisions of the same section, for the “ command ” may not be obeyed, or the “ advice ” followed, and therefore no one may became a participator in an offense which itself has been fully consummated by the mere giving of the “ command ” or “ advice,” but where the alleged crime under this subdivision consists, as charged in the indictment in this case, and as supposed to be supported by the evidence herein in " aiding, assisting and abettingit becomes consummated only by the guilty act or attempt to commit- a guilty *123act by another and that other thereupon becomes an accomplice. For both there is an identity of penalty.


The police properly relied on defendant’s accomplice’s sister’s apparent authority to consent to the search of the apartment that defendant occasionally shared with his <mask>, and which resulted in recovery of the gun that defendant seeks to suppress (People v Adams, 53 NY2d 1). Defendant’s challenges to the prosecutor’s comments are for the most part not preserved for review as a matter of law (People v Balls, 69 NY2d 641), and in any event without merit. The prosecutor’s characterization of this murder by a shotgun blast to the head as a "cold-blooded” killing was proper (see, People v Perez, 165 AD2d 658, 660, lv denied 76 NY2d 989), as was his call for the jury to give the victim’s family justice (People v Perez, 176 AD2d 165, lv denied 79 NY2d 862).


After the oral decision was announced, the United States Court of Appeals for the Second Circuit decided United States v Naranjo (14d 145 [2d Cir 1994]). The court held that telephone calls from outside the Southern District of New York by Naranjo’s <mask> to an undercover narcotic agent’s beeper in Manhattan, in the Southern District of New York, were sufficient for venue if a conspiracy charge in the Southern District, "at least in the absence of unfairness or hardship to the defendant arising from trial in that district, or artificial creation of venue in that district by the Government” (at 146). That decision does not require a finding of venue on the basis of Kaiser’s telephone call.


This is not the first time our court has relied on Simons when concluding a instrument *682that is not inherently deadly was used as a deadly weapon. In Page , supra , 123 Cal.App.4th 1466, 20 Cal.Rptr.3d 857, the defendant and his female <mask> robbed the victim and, after rifling the victim's pockets for his wallet, the female accomplice held a sharp pencil to the victim's neck and told him not to call the police. ( Id . at pp. 1468-1469, 20 Cal.Rptr.3d 857.) The defendant *332challenged his conviction for assault with a deadly weapon contending the pencil was not a deadly weapon. ( Id . at p. 1470, 20 Cal.Rptr.3d 857.) Relying on Simons and similar cases, this court concluded the accomplice used the pencil in such a manner that it was capable of producing serious bodily injury and, therefore, that under the facts of that case the pencil was a deadly weapon as a matter of law. ( Id . at pp. 1470-1473, 20 Cal.Rptr.3d 857.) We rejected the suggestion that Simons was distinguishable simply because it did not address the aggravated assault statute. " '[N]o sound reason appears to define a "deadly weapon" for purposes of [Penal Code] section 245 differently than it is defined in other contexts under other statutes.' [Citations.] Cases discussing the definition of a deadly weapon routinely rely on other cases dealing with different statutes. [Citations.]" ( Page , at p. 1472, 20 Cal.Rptr.3d 857.)


The testimony [from the accomplices] reveals that Pitts received a telephone call from Leslie Murphy, stating that she and Pitts's former girlfriend were in San Antonio and would be coming through Bruceville-Eddy that afternoon and wanted to meet with him. Pitts agreed to meet them outside a movie rental shop in Eddy. Pitts did not have transportation, so he called Kussmaul to pick him up. While waiting for Leslie Murphy to arrive, Pitts and Kussmaul went to the Frontier Lounge for an hour or two. They then went to the movie rental store where they picked up Leslie Murphy and her companion, Steven Neighbors. Pitts' former girlfriend was not with them. They all then rode in Kussmaul's pickup to a mobile home in a rural area near Moody. On their way they picked up another friend of Kussmaul's, James Long. Kussmaul lived at the mobile home with Michael Shelton and two girls. The two girls, however, were not present during any of the events that happened at the mobile home that evening. Michael Shelton was at the mobile home when Kussmaul left to pick up Pitts and was still there when the group returned. They only stayed at the mobile home a short period of time while they loaded up an ice chest with beer and left for Poor Boys, a nightclub in Eddy. They stayed at Poor Boys until nearly closing time and shot pool. All were drinking beer except Pitts and the victims, who were all underage. There was also some evidence that Kussmaul went outside Poor Boys at one point in the evening and smoked some marijuana. From Poor Boys they all rode back to the mobile home in Kussmaul's pickup truck. Shelton and others were still drinking beer, which was being passed from the coolers in the pickup bed through the rear sliding-glass window to those in the passenger cab. Shelton admitted to drinking 18 to 20 beers during the course of the evening. After being at the mobile home a short while, the <mask> testimony is that Kussmaul began "harassing" and making "sexual advances" on Leslie Murphy by placing his hands on her breasts and between her legs. Murphy *611apparently tried to discourage Kussmaul verbally and ultimately slapped him on his face. Kussmaul then hit her in the face with his fist, knocking her to the floor. Kussmaul then "hollered" at Pitts, Long, and Shelton to hold Murphy down while he took his lock-blade knife from the holster on his belt and cut the crotch out of her jeans and panties. According to the testimony, Leslie Murphy was screaming for help during this time. Kussmaul began raping her on the carpeted living room floor, but apparently due to her continued resistance, he and the accomplices forcibly carried her into the bedroom where she was "thrown" onto a bed which had a flowery yellow sheet on it. Prior to carrying Murphy into the bedroom, James Long hit Steven Neighbors in the face with his fist and knocked him "almost unconscious" on the floor. Pitts was trying to hold Murphy down on the bed, but she looked up and Kussmaul hit her in the face again and tied a "gag" around her head and over her mouth. After that, she was described as "not moving much," and Kussmaul then raped her and left the bedroom. Long, Shelton, and Pitts then raped Murphy, during which occurrence a gunshot was heard from outside. Kussmaul returned to the bedroom with a rifle. Neighbors was dragged from the living room into the bedroom where Kussmaul kicked him in the face and he fell to the floor. Kussmaul then stated he was going to "kill the fucking bitch" and shot her once in the back. He then turned the rifle toward Neighbors and stated that he was "going to kill him, too" and shot him in the back, also. Kussmaul, Shelton, Long, and Pitts then wrapped the victims in sheets and placed them in the back of Kussmaul's truck. They drove around for awhile and eventually dumped the bodies beside a gravel road. They returned back to the mobile home and cleaned up the blood and vacuumed the floors. During the cleaning, Kussmaul was still in possession of the rifle, which was described as being bolt-action.2 B. The Corroborating Evidence


Under the facts alleged here, the middleman’s participation was integral to the success of the corrupt commercial bribing *824transaction, but this does not transform the middleman’s conduct to that which is "necessarily incidental”. Bribe giving is directed at the bribe giver; bribe receiving is directed at the employee. When a third person is added to the calculus, that person’s conduct may create criminal liability simultaneously as both an <mask> to the bribe giver and the bribe receiver. Of course, the separate crimes of commercial bribing and commercial bribe receiving would be concurrent counts for sentencing purposes. (See, Penal Law § 70.25 [2]; see also, CPL 300.30 [3].)


*371To conclude, this is a four-eyewitness case. The question for the jury was whether defendant’s actions made him an <mask> (lookout) in aid of the self-confessed actual robber. The fact that defendant’s culpable mental state in aiding the main perpetrator is shown circumstantially does not require, under prevailing law, a full-blown circumstantial evidence charge. Defendant was convicted under the applicable reasonable doubt standard, and he cannot properly demand more.


In order to make these challenges on appeal, however, appellant was required to strictly comply with Arkansas Rule of Criminal Procedure 33.1 (2017), which mandates the content and timing of directed-verdict motions at trial. Appellant failed to comply with Rule 33.1. First, appellant's initial motion was too general and lacked any specific challenge to the State's proof, as required by Ark. R. Crim. P. 33.1(a) and (c). Second, appellant's motion did not mention credibility of witnesses, nor did it mention the requirement of corroboration of <mask> testimony.1 An appellant is bound by the scope and nature of the arguments raised at trial. Stewart v. State , 2012 Ark. 349, 423 S.W.3d 69 ; Brewer v. State , 2017 Ark. App. 119, 515 S.W.3d 629. And third, even if the initial motion contained the necessary specificity and included these arguments, appellant failed to renew the motion for directed verdict at the appropriate time, as required by Ark. R. Crim. P. 33.1(a) and (c) (at the close of the State's case and renewed at the close of all the evidence). Appellant's attorney admittedly waited until it was too late, presenting the renewal after the jury had begun deliberating on his sentence, which was after the jury had already found him guilty of first-degree murder. See Cathey v. State , 351 Ark. 464, 95 S.W.3d 753 (2003). We are therefore precluded from reaching appellant's sufficiency-of-the-evidence arguments on appeal.


Administrative Code § 14-140 (b) provides in pertinent part: “Custody of property and money. All property * * * taken from the person or possession of a prisoner * * * all property * * * suspected of having been used as a means of committing crime or employed in aid or furtherance of crime * * * shall be given, as soon as practicable, into the custody of and kept by the property clerk.” Administrative Code § 14-140 (e) (1) provides in relevant part: “Where * * * property * * * ha[s] been used as a means of committing crime or employed in aid or in furtherance of crime * * * a person who so * * * used, [or] employed * * * any such * * * property or permitted or suffered the same to be used, [or] employed * * * or who was a participant or <mask> in any such act, or a person who *362derives his or her claim in any manner from or through any such person, shall not be deemed to be the lawful claimant entitled to * * * such * * * property.”


The law of this State with respect to pretrial inspection begins, and insofar as it is pertinent to the issue before me ends, with People ex rel. Lemon v. Supreme Ct. (245 N. Y. 24 [1927]). The defendant was accused of murdering her husband by poisoning his food. The defendant was granted an inspection of the Grand Jury minutes. She thus obtained all the medical testimony concerning the cause of death. The *804defendant was not satisfied with this disclosure. She also sought written documents not submitted to the Grand Jury. Included were a confession by her <mask>; complete memoranda of the post mortem examination, and all other reports of chemical analysis of the organs of the deceased. All of these additional requests were granted. The District Attorney petitioned for an order of prohibition.


We disagree and hold that the circuit court did not err by denying appellant's motion for directed verdict. A defendant is an <mask> so long as he or she renders the requisite aid or encouragement to a principal irrespective of whether the defendant directly commits the crime. Atkinson v. State , 347 Ark. 336, 347, 64 S.W.3d 259, 266 (2002). The accomplice-corroboration statute, enacted in 1883, remains virtually unchanged since its enactment:


Because K.F. was not "charged with supervision of a minor" as set forth in the statute, she is not in the class of persons who can commit the offense of first-degree endangerment.1 As a result, K.F. cannot be principally culpable for committing the offense of first-degree endangerment. The circuit court recognized this point at trial, noting that K.F. was "correct in that the [endangerment statute] requires that somebody be a parent/guardian or otherwise legally charged with [the minor's] well-being." The court, however, accepted the State's argument *328that it was proceeding against K.F. as an <mask> to MaKayla, who was the person charged with supervision of the minor. We must therefore consider the matter of accomplice liability under Arkansas's statutes.