Dail v. State

• Decision Date: 13 March 2013
• Docket Number: No. CACR12-69,CACR12-69
• Parties: CARRIE DAIL APPELLANT v. STATE OF ARKANSAS APPELLEE
• Court: Arkansas Court of Appeals

2013 Ark. App. 184

CARRIE DAIL APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CACR12-69

ARKANSAS COURT OF APPEALS DIVISION IV

Opinion Delivered: March 13, 2013

APPEAL FROM THE POINSETT

COUNTY CIRCUIT COURT

[No. CR2008-463]

HONORABLE BARBARA HALSEY,

JUDGE

AFFIRMED

LARRY D. VAUGHT, Judge

Appellant Carrie Dail was convicted by a Poinsett County Circuit Court jury of two counts of manslaughter. She was sentenced to ten years imprisonment in the Arkansas Department of Correction and ordered to pay a $10,000 fine for each count, with each sentence to run concurrently. On appeal, Dail challenges the sufficiency of the evidence supporting her manslaughter convictions and argues that the trial court erred in denying her motion for new trial based on jury misconduct. We disagree and affirm her convictions.

In her first argument for reversal, Dail argues that the trial court erred in denying her motion for directed verdict because the evidence was insufficient to sustain the manslaughter convictions. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Johnson v. State, 375 Ark. 462, 291 S.W.3d 581 (2009). We will affirm the circuit court's denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury's verdict. Id. This court hasrepeatedly defined substantial evidence as evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Hoyle v. State, 371 Ark. 495, 501, 268 S.W.3d 313, 318 (2007). In reviewing the sufficiency of the evidence, we view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the State, without weighing it against conflicting evidence that may be favorable to the appellant, and affirm the verdict if it is supported by substantial evidence. Wetherington v. State, 319 Ark. 37, 889 S.W.2d 34 (1994).

Dail was charged under Arkansas Code Annotated section 5-10-104(a)(3) (Repl. 2006), which states that a person commits manslaughter if the "person recklessly causes the death of another person." "Re cklessly" is defined in Arkansas Code Annotated section 5-2-202(3) (Repl. 2006) as follows:

(A) A person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur.

(B) The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor's situation[.]

Dail's motion for directed verdict on the manslaughter charges addressed only the sufficiency of the evidence to support a finding that she recklessly caused the deaths of Alpha Gann and Harold Scrimsher. She also argued that the State failed to prove that she was intoxicated with regard to the negligent-homicide charges, of which she was acquitted. However, the bulk of her appeal is dedicated to the intoxication argument. In challenging the sufficiency of the evidence, a movant must inform the trial court of the specific basis onwhich the motion is made. Campbell v. State, 319 Ark. 332, 891 S.W.2d 55 (1995). Arguments not raised at trial will not be addressed for the first time on appeal, and parties cannot change the grounds for an objection on appeal, but are bound on appeal by the scope and nature of the objections and arguments presented at trial. Abshure v. State, 79 Ark. App. 317, 322-23, 87 S.W.3d 822, 826-27 (2002).

At trial, Michelle Scrimsher testified that on October 21, 2007, a sports-utility vehicle driven by Dail crashed into a car driven by her mother, Alpha Gann, and carrying passengers, Michelle's father, Virgil Gann, and Michelle's husband, Harold Scrimsher. Specifically, Michelle stated that she was driving northbound on Highway 1 at approximately 10:15 a.m.; the weather was "clear and sunny", and the road was dry and clear of debris." According to Michelle, there was a pickup truck "two or three car lengths in front of her, a Jeep was directly behind her, and her parents' car was next, six or eight car lengths behind" her. Michelle observed the pickup truck jerk "to the right very hard to the shoulder of the road." She then observed a southbound SUV "right in front of her" straddling the middle line. Michelle drove off the roadway to avoid a head-on impact. She then watched the SUV hit her parents' car, which had veered over to the shoulder. According to her testimony, she ran for forty-five seconds to a minute back to her parents' car and found that her mother and her husband had been killed.

Cindy Parr, Michelle's sister, was the front-seat passenger in the car driven by Michelle. Parr testified that all the vehicles were traveling at approximately fifty-five miles per hour and that after the pickup truck in front of them swerved, she "saw the SUV abouttwo feet in their lane." Parr testified that she saw the SUV in the wrong lane hit her parents' car, after her sister had swerved over onto the shoulder. When she and her sister arrived at her parents' car, her father was "out of it," but had come to. Her mother and brother-in-law were dead.

Larry Parks was driving his pickup truck with an attached sixteen-foot trailer in the northbound lane of traffic. He testified that he saw a small SUV a "long way down the road" coming toward the center line and it "just kept coming over," so he swerved his truck away to the right by jerking his steering wheel. He testified that the SUV was a foot into his lane, but he observed nothing in the southbound lane to necessitate the encroachment. Through his rearview mirror, he observed that the car immediately behind him had to veer "off the road" to the right in order to avoid an impact. He also stated that he did not see the SUV's brake lights activated or hear tires "squalling." But, he testified that he did hear the impact, and it sounded like a "vehicle running into a brick wall."

The State showed that Dail was the person driving the SUV and that Alpha and Harold both died as a result of the injuries they suffered in the crash. Responding officers noted that the impact occurred seven feet from the center line and three feet from the...