State v. Stebbins – Per Curiam – Affirmed – Saline ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,422
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
HEATHER YVONNE STEBBINS,
Appellant.
MEMORANDUM OPINION
Appeal from Saline District Court; PATRICK H. THOMPSON, judge. Opinion filed February 17,
2023. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Michael R. Serra, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., SCHROEDER and GARDNER, JJ.
PER CURIAM: A jury convicted Heather Yvonne Stebbins of attempted aggravated
robbery and criminal possession of a weapon by a convicted felon. Before sentencing,
Stebbins moved for a new trial based on the discovery of new evidence, as the witness
who testified at trial that Stebbins had used a weapon later said she had not. But the
district court denied that motion after an evidentiary hearing. Stebbins appeals the denial
of her motion for a new trial. After review, we affirm the district court's decision.
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Factual and Procedural Background
We first review the evidence leading to Stebbins' convictions. In February 2020,
Saline County law enforcement officers spoke with Stephanie Guntz and Kevin
Fernandez, who said they were victims of an armed robbery. According to Guntz and
Fernandez, they were traveling to Florida on a Greyhound bus when they were kicked off
in Topeka, Kansas. Guntz telephoned their friend "Charlie," who lived in the area, and
asked her for a ride to Salina so they could catch another bus at its Greyhound station.
Charlie, in a car with her friend Darren Jackson, picked up Guntz and Fernandez.
On the way to Salina, Charlie took a detour allegedly to visit her son's grave. But while
out in the country, Charlie pulled over and stopped on a dirt road and another car pulled
up behind them. Two men and one woman exited the rear vehicle, pulled Guntz and
Fernandez out of the front vehicle at gunpoint, and stole $3,600 in cash from their bags.
Guntz and Fernandez did not tell officers that the robbers also stole heroin from them.
Neither Guntz nor Fernandez could describe the assailants in much detail, but
Guntz described the woman as white and short with long, dark hair, and she described the
gun pointed at her as black and silver, possibly a 9mm handgun. Saline County law
enforcement suspected that "Charlie" was Kinnsley Mathews. They knew Mathews went
by the nickname "Charlie" and had lost a child in 2019. During a later interview,
Fernandez identified Mathews as "Charlie" from a photo lineup.
Law enforcement officers interviewed Mathews in March 2020. During that
interview, Mathews said the following. Guntz and Fernandez called her for a ride after
they had been kicked off a Greyhound bus in Topeka. Mathews asked Jackson for help
because he was the only person she knew that had a vehicle available that day. After
Mathews and Jackson picked up Guntz and Fernandez, Jackson asked them about what
belongings they had with them.
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Mathews, who was driving, pulled the car to the side of the road and another
vehicle driven by Jesse Rick soon pulled up behind them; Stebbins was a passenger in
that car. Mathews saw Stebbins and Rick brandish firearms and order Guntz and
Fernandez to get out. Jackson got out as well and participated in the aggravated robbery.
Jackson then ordered Mathews to drive away, leaving Guntz and Fernandez on the side of
the dirt road. Mathews did so because Jackson threatened to hurt her if she did not
comply. Mathews recognized Stebbins because of a previous encounter with her and
could identify Stebbins by her facial tattoo.
Jackson and Stebbins were detained by officers but denied any knowledge of the
robbery.
Rick was also detained, but he gave a statement to law enforcement. He said
Mathews and Jackson had traveled to Topeka to steal heroin from Guntz and Fernandez.
On the way back to Salina, Mathews planned to stage a fight with Jackson to create a
diversion so that Rick and Stebbins could take the heroin from Guntz and Fernandez.
Rick was with Stebbins when Jackson called to tell them their location. Rick did not
know whether Jackson and Stebbins got anything but heroin from the robbery. Rick said
there was no "gun play" during the robbery, but he was unsure of what had occurred
before he arrived.
The State charged Stebbins with two counts of aggravated robbery for the theft of
the currency from Guntz and Fernandez and one count of criminal possession of a firearm
by a convicted felon.
The trial
At trial, the State presented testimony from Mathews and Rick. The State advised
that Rick had agreed to testify for the State in exchange for a favorable plea deal and
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without any immunity. Stebbins' counsel objected to Rick's late endorsement as a
witness, arguing that he had changed his account of events. When Rick first spoke with
officers, he denied that firearms had been used in the robbery. But contrary to that
statement, Rick now planned to testify that firearms had been used in the robbery.
Over Stebbins' objection, Rick was endorsed as a witness and testified at trial.
Rick testified that he and Stebbins had traveled to the area of the cemetery where
Mathews' child was buried. While there, he got a text from Mathews or Jackson that the
man in the back seat of that car had the heroin. Rick approached the driver's side rear
door of Mathews' vehicle with his gun drawn while Stebbins approached the passenger
rear door with her gun drawn. Rick believed the stolen heroin was given to Mathews.
Once back in Salina, Mathews, Jackson, Stebbins, Stebbins' boyfriend, and Rick split up
the heroin.
Rick testified that his testimony was in exchange for a favorable plea bargain, but
that the State had not coerced him to testify and that his testimony was truthful. On cross-
examination, Rick admitted that he had offered information to officers to try to stay out
of jail, that he had first told officers no firearms were involved in the robbery, and that
the robbery was a set up between Mathews and Jackson.
Deputy Craig Norris of the Saline County Sheriff's Office testified as to events
after the robbery. When he conducted a traffic stop of a vehicle in which Stebbins was a
passenger, after she was suspected of the robbery, a Bersa Thunder .380 semiautomatic
handgun and five rounds of ammunition were found inside her purse underneath her seat.
She was then arrested.
The State also presented evidence from a cell phone in Rick's apartment showing
contacts with "Heather" and "Darrin" on the day of the robbery. Rick later identified this
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phone as his. That phone's location data also showed the phone had been taken from
Rick's apartment to the general location of the area where the robbery occurred.
Similarly, the State also introduced data from Jackson's cell phone. That evidence
showed multiple calls to Stebbins, Rick, and Mathews on the date of the robbery.
Jackson's cell phone records also showed he had traveled from Salina, to Topeka, and
then back to Salina that day. And after the robbery, Jackson sent messages advertising
heroin for sale.
Mathews also testified. She said she immediately recognized Rick and Stebbins as
they exited the car that had pulled up behind hers. She then saw Rick and Stebbins
approaching her car with "guns drawn." When shown the gun seized from Stebbins,
Mathews said it looked like the gun Stebbins had used in the robbery, but she could not
be certain it was the same one. Drugs and money were stolen from Guntz and Fernandez,
and when she returned to Rick's apartment she saw Stebbins, Rick, and Jackson weigh
and divide the heroin.
The jury ultimately convicted Stebbins of one count of attempted aggravated
robbery (a lesser included offense of her original charge of aggravated robbery) and
criminal possession of a firearm by a convicted felon. The jury acquitted her of a second
count of aggravated robbery.
Posttrial events
After trial, Stebbins moved for a new trial based on a Facebook message Rick sent
to Marcus Vineyard after Stebbins' trial. That message said: "[T]he county attorney told
me if I don't change my story and that guns were involved then [I'm] not getting any deal
and I have to go to trial." Stebbins argued this proved Rick perjured himself during trial,
warranting a new trial. The State objected to Stebbins' motion.
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The district court held an evidentiary hearing on Stebbins' motion. When the
defense called Rick to testify, he confirmed that
• when he was arrested, he had offered to provide information to law enforcement
to stay out of jail;
• he had initially told police that no firearms were used in the robbery;
• he had later told the prosecutor during plea negotiations that he and Stebbins had
used firearms; and
• he had sent the Facebook message to Vineyard "within days" of the trial.
The Facebook message was admitted without objection.
When Stebbins' counsel asked Rick if he had been told he had to testify that guns
were involved in the robbery to receive a favorable plea agreement, Rick responded he
was told, "I have to tell the truth, is what I'm told—was told." During cross-examination,
Rick maintained that his statements during Stebbins' trial were truthful and were not the
product of coercion by the State. When asked why he sent the Facebook message to
Vineyard, Rick replied, "To ease the blow to my reputation." Rick confirmed that the
Facebook message was not true and that he had sent it so Vineyard would not think that
he was a "rat." Rick also testified that he had not discussed with the prosecutor what he
would say at the hearing on the motion for a new trial.
Stebbins also testified. She claimed:
• Shortly before the hearing, she had met with Rick at his request;
• Rick then told her his message to Vineyard was true and he was just trying to
make things right;
• a friend heard that conversation but was not called to testify;
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• Rick was "petrified" that his plea agreement would be revoked;
• the prosecution had pressured Rick to say firearms were used; and
• Rick had spoken with the prosecution after Stebbins moved for a new trial.
The district court's decision
After considering the evidence at trial and at the hearing on the motion, the district
court denied Stebbins' motion for a new trial. It found:
• Rick had been questioned extensively during trial by both counsel about his
history of statements and his negotiations with the State;
• the jury heard about the inconsistencies between Rick's initial statements to law
enforcement and his trial testimony, as well as the last-minute timing of his plea
agreement and the circumstances surrounding it; and
• the jury could fairly assess Rick's credibility—balancing his plea agreement and
his testimony—based on the evidence presented at trial.
The district court elaborated on Rick's motive to change his story and on the
credibility of his testimony:
"Mr. Rick's [sic] testified here this morning that he testified truthfully at trial. The
county attorney had not told him that he had to say guns were involved to get his deal.
That he was told to tell the truth, and that's what he testified to at trial, was the agreement
with [the prosecutor's] office.
"Also, as he testified, there was plenty of motivation for him to try to say
something else to his friends after he testified at trial. He had been labeled a rat. And in
the world Mr. Rick operates in, that's not a label you want. He was trying to repair his
reputation. The message wasn't true. And the Court finds that testimony totally credible.
This Court's going to find that the message that was given by Mr. Rick to Mr. Vineyard
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was, in fact, just that: An attempt to repair his reputation that he did testify truthfully at
trial."
The district court also noted that Stebbins' convictions were not solely the product
of Rick's testimony. Rather, "[t]he phone records, the phone data, the later divvying up of
the drug[s], the firearm found under Ms. Stebbins seat when she was arrested, [and] the
video of the defendant with her conversation from the jail regarding weapons being
seized" all contributed to her convictions.
The district court then sentenced Stebbins to a controlling sentence of 120 months'
imprisonment, denying her requests for downward durational and dispositional
departures.
Stebbins now appeals the district court's denial of her motion for a new trial.
Did the District Court Err in Denying Stebbins' Motion for a New Trial?
On appeal, Stebbins argues the district court abused its discretion by denying her
motion for a new trial based on new evidence. She argues that Rick's posttrial Facebook
message was unavailable at trial and gives rise to a reasonable probability that a new jury
would render a different verdict if presented with this evidence. The State argues that the
district court did not err in denying Stebbins' motion for two reasons. First, the district
court is in the best position to assess the credibility of witnesses, and it found the
Facebook message was not credible. Second, even if the message were credible, it is
merely impeachment or credibility evidence, which is not grounds for a new trial.
We review an order denying a motion for a new trial based on newly discovered
evidence for an abuse of discretion. A court abuses its discretion if there is an error of law
or fact or the action is arbitrary, fanciful, or unreasonable. State v. Ashley, 306 Kan. 642,
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650, 396 P.3d 92 (2017). "Under the abuse of discretion standard, if a reasonable person
could agree with the district court's decision, it will not be disturbed on appeal." State v.
Moncla, 273 Kan. 856, 861, 46 P.3d 1162 (2002). As the party asserting the error,
Stebbins bears the burden to show the district court abused its discretion in denying her
motion for a new trial. See Ashley, 306 Kan. at 650.
A successful motion for a new trial must establish two factors: "(1) that the newly
proffered evidence could not have been produced at trial with reasonable diligence; and
(2) that the newly discovered evidence is of such materiality that it would be likely to
produce a different result upon retrial." 306 Kan. at 650.
As to the first factor, the district court found that the Facebook message was newly
discovered evidence. We agree—the record shows that the Facebook message was not
created or sent until after trial, so it could not have been produced at trial with reasonable
diligence.
The parties focus their arguments on the second factor—whether the Facebook
message was so material that it would be likely to produce a different verdict. Newly
discovered evidence is considered material only if "there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would have
been different." See State v. Warrior, 294 Kan. 484, Syl. ¶ 11, 277 P.3d 1111 (2012).
When determining the materiality of the new evidence, the district court judge "must
assess the credibility of the newly proffered evidence, and the appellate court will not
reassess the district judge's determination of credibility from such a hearing." Ashley, 306
Kan. at 650 (citing State v. Warren, 302 Kan. 601, 615-16, 356 P.3d 396 [2015]).
"[N]ewly discovered evidence that merely tends to impeach or discredit the
testimony of a witness is ordinarily not grounds for granting a new trial. State v. Richard,
235 Kan. 355, 363, 681 P.2d 612 (1984); State v. Foy, 224 Kan. 558, 569, 582 P.2d 2819
(1978)." Ashley, 306 Kan. at 650. And "[e]ven when the evidence tends to impeach the
testimony of a witness, the presence or absence of corroborating evidence is an additional
factor to consider in determining whether newly discovered evidence is so material that it
is likely to produce a different result upon retrial." 306 Kan. at 650.
Several reasons convince us that the district court did not abuse its discretion in
denying the motion for new trial. First, the district court determined that the newly
discovered evidence was not credible enough to warrant a new trial. Rick testified that
the Facebook message was false, and the district court explicitly found Rick's testimony
and explanation of its falsity to be credible. This finding stemmed from the court's
observations of Rick's testimony at trial and at the motion's evidentiary hearing. In
explaining its credibility determination, the district court stated: "[Rick] had been labeled
a rat. And in the world Mr. Rick operates in, that's not a label you want. He was trying to
repair his reputation. The message wasn't true. And the Court finds that testimony totally
credible." This court will not reassess the district judge's determination of credibility from
the evidentiary hearing. Warren, 302 Kan. at 615-16; see State v. Ayadi, 16 Kan. App. 2d
596, 602, 830 P.2d 1210 (1991) (holding that credibility of newly discovered evidence
offered in support of motion for new trial is for district court's determination).
Second, the only value of the Facebook message is to impeach or discredit Rick's
testimony, yet that is generally not grounds for a new trial. See Ashley, 306 Kan. at 650
("This court has held that newly discovered evidence that merely tends to impeach or
discredit the testimony of a witness is ordinarily not grounds for granting a new trial.");
see also Richard, 235 Kan. at 364 ("A new trial is not granted on the basis of newly
discovered evidence which merely tends to impeach or discredit the testimony of a
witness."). This evidence went straight to Rick's motive, and thus his credibility, in his
trial testimony that firearms were involved in the robbery. See Warren, 302 Kan. at 616
(stating, "evidence of bias and motive is a valid method of attacking credibility").
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Third, in determining materiality, we consider any corroborating evidence of the
crucial facts. Ashley, 306 Kan. at 650.
"Even when the evidence tends to impeach the testimony of a witness, the presence or
absence of corroborating evidence is an additional factor to consider in determining
whether newly discovered evidence is so material that it is likely to produce a different
result upon retrial. State v. Rojas-Marceleno, 295 Kan. 525, 540, 285 P.3d 361 (2012)."
306 Kan. at 650.
We thus consider any corroborating evidence that guns were used in the robbery.
Mathews testified that both Rick and Stebbins used firearms during the robbery, and this
was consistent with her initial statements to law enforcement. The State also admitted
evidence of the phone records, the phone data, the later divvying up of the drugs, the
firearm found in Stebbins' purse when she was arrested, and the video of the defendant
with her conversation from the jail regarding weapons being seized to corroborate Rick's
and Mathews' testimony. Thus, Rick's testimony was not the sole evidence leading to
Stebbins' convictions. The corroborating evidence that Stebbins used a firearm lessens
the materiality of Rick's Facebook message.
Rick's Facebook message, although newly discovered evidence, is not so material
that it would be likely to produce a different result upon retrial. For these reasons, we find
no abuse of discretion in the district court's denial of Stebbins' motion for a new trial.
Affirmed.
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