Burley v. State

• Decision Date: 02 May 2002
• Docket Number: No. CR 01-1240.,CR 01-1240.
• Citation: 348 Ark. 422,73 S.W.3d 600
• Parties: Scharel Ann BURLEY v. STATE of Arkansas.
• Court: Arkansas Supreme Court

73 S.W.3d 600

348 Ark. 422

Scharel Ann BURLEY v.STATE of Arkansas.

No. CR 01-1240.

Supreme Court of Arkansas.

May 2, 2002.

Jeffrey W. Hatfield, Fayetteville, for appellant.

Mark Pryor, Att'y Gen., by: Michael C. Angel, Ass't Att'y Gen., Little Rock, for appellee.

W.H. "DUB"ARNOLD, Chief Justice.

The appellant in this case, Scharel Ann Burley, appeals from a Washington County Circuit Court order denying her motion for directed verdict and denying her motion in limine.Burley raises two points on appeal: (1) the evidence introduced at trial was insufficient to support the jury's verdict of guilty on the charge of murder in the second-degree; and (2)the trial court abused its discretion in denying defendant's motion in limine to exclude from evidence an investigation of alleged child abuse by the defendant against another child.We affirm.¹

On Wednesday, January 12, 2000, Central Emergency Medical Services responded to a 911 call from Prairie Grove, Arkansas.The paramedics arrived at the caller's home at 8:48 p.m. to assist a baby in distress.Moments after the paramedics arrived, the baby stopped breathing.The child was identified as eighteen-month-old Samuel Sams.Samuel had been vomiting clear liquid and green mucus, and was breathing at a rate of ten breaths per minute.The paramedics began CPR and transported Samuel to Washington Regional Medical Center.He was pronounced dead at 10:47 p.m.

Dr. Charles Kokes, a medical examiner with the State Crime Lab, performed the autopsy.The cause of death was determined to be acute peritonitis caused by a tear in the child's bowel.The tear was caused by an end-cap of a thermometer, measuring about three inches in length.The end-cap was still inside Samuel at the time of the autopsy.Dr. Kokes testified that peritonitis is associated with severe pain, but is not necessarily fatal.He further testified that the perforation of the rectal wall occurred six to twenty-four hours prior to Samuel's death.Dr. Kokes opined that the force necessary to cause this type of tear would be roughly equivalent to pushing the eraser end of a pencil through six sheets of Saran Wrap.The medical examiner ruled Samuel's death a homicide, and concluded that the perforation of his rectum wall by a thermometer cap was "not an accidental happenstance."

Burley was the child's caregiver at the time that the emergency call was made.Samuel had been in her care since Saturday, January 8, 2000.She told investigators that Samuel had a fever when she picked him up from his mother's home on Saturday and that she had taken his temperature each day he had been in her care using a digital ear thermometer.Burley denied ever using a rectal thermometer on Samuel and stated that although she did own a rectal thermometer, she had not seen it for several months.She also told the investigator that she had called the emergency room when Samuel's condition began to deteriorate and was told that Samuel would be fine as long as she could keep him hydrated.During the course of the investigation, Burley admitted that Samuel had not left her sight while he was in her charge, and that she was his only caregiver during the time period in question.

A search of a trash can in Burley's home produced a clear piece of a thermometer cover that matched the piece found inside of Samuel's abdominal cavity.The police also found a rectal thermometer on a bookshelf in Burley's apartment.Paul Williams testified that around Thanksgiving he gave appellant a rectal thermometer that he received during a promotional event held by his employer, Wal-Mart.He further testified that he had seen Samuel the evening prior to his death and that there "was nothing wrong with him."However, Williams also testified that the next morning he observed Samuel in a crib and he"was just laying there like he was dead."

Brenda Westphall testified that her son had been in Burley's care on Sunday, January 9, 2000.She further stated that she borrowed a rectal thermometer from Burley on Sunday when she came to pick up her son.After taking her son's temperature, she left the thermometer, with both pieces of the protective cover intact, on a night stand in Burley's apartment.According to Westphall's testimony, the following day she noticed that the thermometer had been moved from the night stand.Two other witnesses testified that they had observed appellant taking Samuel's temperature using a rectal thermometer.Finally, Burley's telephone records were subpoenaed and the police found no evidence that Burley had made a call to the emergency room to seek advice on Samuel's care.

On February 18, 2000, Burley was first charged with second-degree murder; however, the information was later amended to first-degree murder.A jury trial was held on August 8-9, 2000.A jury found Burley guilty of murder in the second degree, sentenced her to eighteen years' imprisonment in the Arkansas Department of Correction, and imposed a $12,000 fine.

Sufficiency of the Evidence

First, Burley challenges the sufficiency of the evidence to support the jury verdict of second-degree murder.Specifically, Burley argues that the State failed to prove that she"knowingly" caused the death of the victim.In response, the State argues that the issue was not properly preserved for appeal.Burley did move for a directed verdict at the conclusion of the State's case and again at the close of all the evidence in connection with the charge of second-degree murder.The State admits that Burley's motion for a directed verdict as to second-degree murder was properly executed, but contends that appellant failed to get a ruling on her motion.In denying Burley's directed-verdict motions, the trial court ruled only that the State has made a prima facie case on the murder in the first-degree charge.We hold that the motion is deemed denied pursuant to Arkansas Rule of Criminal Procedure 33.1(c), and we affirm.

This court has held numerous times that the burden of obtaining a ruling is on the movant, and objections and questions left unresolved are waived and may not be relied upon on appeal.Danzie v. State,326 Ark. 34, 930 S.W.2d 310(1996);Williams v. State,289 Ark. 69, 709 S.W.2d 80(1986).In Donald v. State,310 Ark. 197, 833 S.W.2d 770(1992), a case very similar to this one, the appellant moved for a directed verdict at the close of the State's case, and the motion was denied.Donald renewed his motion at the close of all the evidence, as required by Ark. R.Crim. P. 36.21(b), but he failed to obtain a ruling from the court.In that decision, we held that, the burden of obtaining a ruling is on the movant, and the failure to secure a ruling constitutes a waiver, precluding its consideration on appeal.Id. at 198, 833 S.W.2d at 771(citations omitted).

However, according to Rule 33.1(c) of the Arkansas Rules of Criminal Procedure:

The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment.A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient.A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense.A renewal at the close of all of the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal.If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

(Emphasis added.)Ark. R. Crim P. 33.1(c).

Here, Burley did move for a directed verdict at the close of the State's case-in-chief and, again, at the close of the evidence.The trial court ruled that the State had made a prima facie case for murder in the first-degree.The burden of obtaining a ruling on the second-degree murder motion for directed verdict was on Burley.Therefore, the motion was deemed denied for purposes of obtaining appellate review on the question of sufficiency of the evidence with regards to the second-degree murder charge.Accordingly, this point is preserved for appellate review.

It is well settled that a motion for a directed verdict is a challenge to the sufficiency of the evidence.Smith v. State,346 Ark. 48, 55 S.W.3d 251(2001)(citingDurham v. State,320 Ark. 689, 899 S.W.2d 470(1995)).The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial.Smith, supra.Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.Id.When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State.Id.Only evidence supporting the verdict will be considered.Smith, supra.

Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion.Sublett v. State,337 Ark. 374, 989 S.W.2d 910(1999).Such a determination is a question of fact for the fact-finder to determine.Sheridan v. State,313 Ark. 23, 852 S.W.2d 772(1993).The credibility of witnesses is an issue for the jury and not the court.Phillips v. State,344 Ark. 453, 40 S.W.3d 778(2001).The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence.Id.We will disturb the jury's determination only if the evidence did not meet the required...