Davis v. State
Decision Date | 18 July 1994 |
Docket Number | No. CR,CR |
Citation | 879 S.W.2d 439,317 Ark. 592 |
Parties | Charles Randall DAVIS, Appellant, v. STATE of Arkansas, Appellee. 93-1333. |
Court | Arkansas Supreme Court |
Tom Garner, Glencoe, for appellant.
Brad Newman, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Charles Randall Davis, appeals the judgment of conviction entered by Fulton Circuit Court on the charge of second degree murder of Gene Robbins. Appellant asserts four points on appeal. We have jurisdiction of this case since more than thirty years imprisonment was imposed. Ark.Sup.Ct.R. 1-2(a)(2). We find no merit to appellant's arguments and affirm.
The body of Gene Robbins was discovered late in the afternoon of October 1, 1992, in a drainage ditch next to the road 180 feet from his residence. Robbins died around 4:00 p.m. that day from a stab wound to the chest which penetrated his heart. During the investigation, law enforcement officers discovered that a man called "Joey" had been staying with Robbins a few days before Robbins was killed. This man, identified as appellant, was seen with Robbins within an hour of the estimated time of death arguing with Robbins and leaving with Robbins in Robbins's truck. Appellant was identified by the victim's daughter and arrested the next day on the charge of first degree murder. At trial, the jury was instructed on first degree murder, as well as the lesser included offenses of second degree murder and manslaughter. Appellant was found guilty of second degree murder and sentenced to thirty five years imprisonment. This appeal resulted.
Appellant first argues that the trial court erred in not directing a verdict in his favor. Ordinarily, we treat this as a challenge to the sufficiency of the evidence. Lukach v. State, 310 Ark. 119, 835 S.W.2d 852 (1992). On appeal, we test the sufficiency of the evidence before considering other assignments of error. Cleveland v. State, 315 Ark. 91, 865 S.W.2d 285 (1993). The state argues that we need not review the sufficiency of the evidence since appellant was not convicted of first degree murder, for which he moved for directed verdict. Appellant was convicted of a lesser included offense, second degree murder, for which he did not move for directed verdict. The state cites Hickson v. State, 312 Ark. 171, 847 S.W.2d 691 (1993), for this proposition, but that case stands for a different proposition. We said in Hickson that when an appellant moves for directed verdict on capital murder, but is convicted of a lesser included offense, a defendant cannot show prejudice by a denial of the motion for directed verdict on the capital murder charge. The reasoning is that one who does not receive the death penalty cannot obtain reversal based on the jury's consideration of the death penalty. Hickson did not address whether we will examine the sufficiency of the evidence as to lesser included offenses.
However, we will address the sufficiency of the evidence in this case because appellant's motion for directed verdict was sufficient to reach the conviction on second degree murder. In view of the objections and challenges appellant made to the trial court in this case, appellant made it obvious that he was challenging the sufficiency of the evidence as to whether he killed anyone. This encompasses the conviction for second degree murder, and we therefore address that issue.
The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence; substantial evidence is evidence which is forceful enough to compel a conclusion one way or the other and which goes beyond suspicion or conjecture. Moore v. State, 315 Ark. 131, 864 S.W.2d 863 (1993). We review the evidence in the light most favorable to the appellee and consider only that evidence which tends to support the verdict. Id. This evidence, whether direct or circumstantial, must be of sufficient force to compel a conclusion one way or the other with reasonable certainty. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991). The law makes no distinction between circumstantial and direct evidence. Friar v. State, 313 Ark. 253, 854 S.W.2d 318 (1993). However, for circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence. Id. In light of these rules, we find there was substantial evidence to support the verdict.
At trial, a convenience store clerk testified that she saw appellant and Gene Robbins leave together from the convenience store after Robbins offered appellant a ride just a few days prior to Robbins's death. Robbins's daughter positively identified appellant as having stayed with Robbins a few days before his death. The daughter testified that Robbins and appellant were at her house at about 2:30 in the afternoon on the day of his death where they argued about whether some girls were pretty. Appellant and Robbins left in Robbins's truck at approximately 3:15 p.m. Robbins's son-in-law testified that as they drove off, he heard raised voices from the truck and saw Robbins pointing his finger at appellant, who was driving.
Another man, Mitchell Hall, testified that he saw Robbins and appellant drive by, but Robbins did not wave at Hall, a longtime friend. Hall's wife also testified she saw the two in the truck pass by her house and said to her husband that she believed they were having a war. Another man testified that he saw Robbins's truck parked on the side of the highway at approximately 4:15 p.m. that afternoon and also saw a man on the other side of the road walking and holding out his thumb. This witness testified he stopped and gave this man, whom he identified as appellant, a ride. Appellant said the truck was not his but that he was going home to Paragould though appellant did not know how to get there. The state medical examiner testified that the cause of death was a single stab wound to the chest. The county coroner examined the body where it was found and estimated Robbins's time of death to be approximately 4:00 p.m. that day. We cannot say the jury was presented with insufficient evidence to convict appellant of second degree murder.
Even with this circumstantial evidence of timing and location, appellant asserts the state could not prove the requisite intent for second degree murder by circumstantial evidence. However, intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances around the killing. Missildine v. State, 314 Ark. 500, 863 S.W.2d 813 (1993). Intent may be inferred from the type of weapon used, the manner of use, and the nature, extent, and location of the wound. Weger v. State, 315 Ark. 555, 869 S.W.2d 688 (1994). In the instant case, the single stab wound to the chest penetrating the heart constitutes sufficient circumstantial evidence to show that appellant acted knowingly in causing the death of Gene Robbins.
Appellant's next argument is that the trial court erred in denying his motion for mistrial during the testimony of the sheriff. The testimony of the sheriff at issue is as follows:
After she described him so vividly, there was no doubt in my mind that that was the man that I had saw walking along the highway, which would be in the direction of a lot of places, but one would be that would be the route to Harrisburg. I notified the Harrisburg P.D. and was furnished with a...
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