Appeals court hears challenge to "in concert" element in aggravated-burglary conviction and dispute over undisclosed jail call

An appellate panel heard oral argument over whether the evidence supported Serena Hammond’s conviction for aggravated burglary "in concert with two or more persons," and whether a jail phone call referenced at trial but not disclosed in discovery requires reversal.

Defense counsel Jonathan Harwell told the court he would address three issues, two “sufficiency” challenges and a challenge to admission of a jail phone call. Harwell argued the State failed to prove the additional element that the two named codefendants, Rangel and Roe, knowingly joined Hammond in entering a home without consent and assaulting the occupant. "There was not proof beyond a reasonable doubt such that a jury could say that Mister Roe or Mister Rangel united with her in any plan to go inside the house and assault someone," Harwell said.

Harwell said the evidence at trial showed a confrontation that became violent and that other people arrived, but—he argued—the record at best showed the two codefendants entered after the assault had already begun and then helped separate the parties and leave. He characterized their conduct as, at most, "accessory after the fact," not conduct that would make them criminally responsible for the burglary and assault.

State prosecutor Johnny Saraceno responded that the record supports a finding the codefendants acted to aid Hammond during the incident. Saraceno summarized witness testimony saying the codefendants threatened the victim on the porch, confined the victim’s dog to another room so it could not protect the owner, and later helped pull Hammond away when she called for help. "I would argue that the evidence on its face is sufficient to convict because it is clear from the record that the codefendants acted and aided the defendant in committing this aggravated burglary," Saraceno said.

The court questioned the parties about legal doctrine on inconsistent verdicts. Harwell relied on precedent distinguishing conspiracy from other joint-liability theories and urged the court to apply a rule that an acquittal of one of the necessary participants should preclude convicting a defendant of an offense that can be committed only by two or more persons acting together. He cited the Jackson authority as an example of that reasoning. Saraceno countered that the "in concert" statutory language (and analogous criminal-responsibility principles) is broader than conspiracy and that inconsistent verdicts are not dispositive in this context.

On the discovery issue, Harwell said the prosecutor repeatedly invoked an undisclosed jail phone call during cross-examination and closing to impeach Hammond and to suggest undisclosed evidence (a video) existed. "We can't now come up on appeal and say, 'oh, that didn't matter,'" he said, urging the court to take seriously how the recording was used at trial. The State acknowledged discovery obligations but told the court that remedy for a Rule 16 discovery violation is discretionary. Saraceno argued the trial court did not plainly err under the factors for reversal and noted the recording was offered in part to explain other testimony about a cell-phone light and possible recording of the incident.

Several judges asked whether the jury might have found Hammond acted in concert with unnamed people who were at the scene rather than the two named codefendants; that line of questioning acknowledged trial testimony that multiple people were present. Both sides acknowledged that possibility, but Harwell emphasized how the indictment and trial focused on the three charged defendants.

The panel did not announce a decision at argument. The proceedings recessed after counsel completed argument and rebuttal time.