Fight v. State

• Decision Date: 18 October 1993
• Docket Number: No. CR,CR
• Citation: Fight v. State, 314 Ark. 438, 863 S.W.2d 800 (Ark. 1993)
• Court: Arkansas Supreme Court
• Parties: Louis FIGHT, Appellant, v. STATE of Arkansas, Appellee. 93-114.

Page 800

863 S.W.2d 800

314 Ark. 438

Louis FIGHT, Appellant, v.STATE of Arkansas, Appellee.

No. CR 93-114.

Supreme Court of Arkansas.

Oct. 18, 1993.

Oscar Stilley, Fort Smith, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

The appellant, Louis Fight, was convicted of manslaughter, leaving the scene of a personal injury accident, and two counts of aggravated assault.He was sentenced to 10 years incarceration on the manslaughter count and six years on each of the other counts.The death and injuries were inflicted by a person other than Fight who drove her vehicle into the victims and then away from the scene.The basis of Fight's conviction was that he contributed to the driver's intoxication by sharing a marijuana cigarette with her.We agree with Fight's contention that the evidence was insufficient to support the conviction, thus the conviction is reversed and dismissed.Other arguments need not be addressed.

The case was tried before a jury.From the evidence presented, viewed most favorably to the State's case, the Trial Court could have concluded the following events took place in the early morning hours of August 27, 1992.Fight and Renee Smith were together at her home.Both were drinking, and Fight rolled one marijuana cigarette which he shared with Ms. Smith when they left her house.They got in Ms. Smith's pickup truck with Ms. Smith driving.Her blood alcohol level was .16% and his was .15% when they were arrested a short time later.

Ms. Smith drove on a highway past the scene of a burning car.She then turned her truck around and headed back to the fire scene where there were several emergency vehicles with their emergency lights flashing.At least one emergency vehicle was parked in the middle of the highway, and hoses were stretched from the emergency vehicle over to the burning car which was at the side of the highway.Instead of driving on the vacant part of the highway, and thus around the emergency vehicle and the burning car, Smith drove between the emergency vehicle and the burning car.Her truck struck two policemen, Jerry Stallings and James Andoe, and one fireman, Johnnie Grizzle.Stallings was killed, and the other two were injured.

Ms. Smith continued driving even though she blew out one of her tires on a fire hose coupling.Officer Andoe chased the vehicle until it was forced to stop, and he arrested both occupants.

Sufficiency of the evidence

There is no question that a directed verdict motion was made at the proper points in the trial on the ground that there was a lack of evidence to support the conviction.The State contends we should not address the sufficiency of the evidence issue as Fight's abstract does not apprise us of the argument made to the Trial Court in conjunction with the motions for directed verdict.The State does not deny that the argument made by Fight on appeal was made to the Trial Court, but contends that it is not properly abstracted.

We agree with the State's citation of Porchia v. State, 306 Ark. 443, 815 S.W.2d 926(1991), for the proposition that the record on appeal is limited to that which is abstracted.The State also quite correctly cites Moore v. State, 304 Ark. 257, 801 S.W.2d 638(1990);Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845(1990);andTaylor v. State, 299 Ark. 123, 771 S.W.2d 742(1989), holding that a directed verdict motion setting forth a specific theory must be made to the Trial Court.

Unlike cases where we have dismissed appeals for total failure to abstract an essential motion or judgment, see, e.g., Taylor v. State, supra, or where the abstract displays a different argument made to a trial court than is made on appeal, see, e.g., Pilcher v. State, supra, we do not find this abstract to be "flagrantly deficient."See Arkansas Supreme Court and Court of AppealsRule 4-2(b)(2).From Fight's abstract, we know that the directed verdict motions were made.From his argument we know what his contention with respect to the directed verdict motions is.Again, the State does not deny that the contention now argued was argued to the Trial Court.

It is obvious that, as Fight did not directly cause the injuries resulting in the charges, his criminal responsibility must be based upon accomplice liability.Fight asserts there can be no basis for the conviction because there can be, as a matter of law, no accomplice liability based solely upon supplying an intoxicant to one who then commits a criminal act.In general, when the sufficiency of the evidence is challenged, we look to the evidence presented and affirm if there is substantial evidence to support the verdict.Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58(1990).We review the evidence in the light most favorable to the appellee, considering only that which tends to support the verdict.Brown v. State, 309 Ark. 503, 832 S.W.2d 477(1992);Hooks v. State, 303 Ark. 236, 795 S.W.2d 56(1990).But the evidence thus considered must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion.Pemberton v. State, 292 Ark. 405, 730 S.W.2d 889(1987).

The evidence in this case concerning intoxicants came from Fight's statement after he was arrested that he shared a marijuana cigarette with Ms. Smith at some point in the evening.There was undisputed evidence presented by toxicologist Randall Tucker that Ms. Smith was over the legal limit of .10% for alcohol consumption and operation of a vehicle at the time of the incident.SeeArk.Code Ann. § 5-65-103(1987).There were in addition traces of cannabanoids in her fluid sample.No evidence was presented suggesting that Fight supplied any alcohol to Ms. Smith, and no witness testified that intoxication from the sharing of whatever quantity of marijuana Fight shared with her created or enhanced the danger of injury to another.

Fight cites cases which demonstrate that we have clearly held in civil litigation there is no liability on the supplier of intoxicants because it is the consumption of them that is to blame rather than the supplying of them.Rone v. H.R. Hospitality, Inc., 297 Ark. 107, 759 S.W.2d 548(1988);Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656(1965).We have repeatedly stated that the issue of civil liability for supplying alcohol to one who then injures another rests in the hands of the Arkansas General Assembly.He also cites older dram-shop cases which considered the effect of a statute requiring one selling liquor to post a bond.In those cases it was held that the statute imposed no liability on the supplier beyond the natural consequences of the consumption of alcohol, generally stating that the supplying of alcohol was not the proximate cause of the injuries in question.Bolen v. Still, 123 Ark. 308, 185 S.W. 811(1916);Peter Anderson & Co. v. Diaz, 77 Ark. 606, 92 S.W. 861(1906);andGage v. Harvey, 66 Ark. 68, 48 S.W. 898(1898).

The State responds on the manslaughter charge by citing Lewis v. State, 220 Ark. 914, 251 S.W.2d 490(1952), for the proposition that it is possible for a defendant to be criminally liable for recklessness causing the death of another in a vehicular homicide even if that defendant is not driving the vehicle at the time of the incident.The Lewis case opinion referred to Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173(1944), in which we held that a drunk passenger could be convicted as an accessory before the fact to involuntary manslaughter and held to the same degree of fault as the driver who was the principal offender.

In the Fitzhugh case, each of the occupants of the truck, Fitzhugh and Davis, contended the other was driving and that he had no recollection of the incident.Fitzhugh and Davis were drunk or had been drinking in the truck belonging to Fitzhugh, and we said the jury could have found that, even if Fitzhugh was not actually driving, he was not so drunk that he could not know that his truck was being driven on the wrong side of the road in such a manner as to become an instrument of death.

The facts and instructions in the Lewis case were similar to those in the earlier Fitzhugh case.Lewis owned the car, and each defendant stated the other was driving and denied recollection of the incident.Both were charged under the accessory before the fact law.The instructions stated that if one of the defendants was driving the car in a reckless, willful manner with wanton disregard for the safety of others, and the other defendant was riding as a passenger and was aiding, abetting, or assisting in the unlawful operation of the car by the co-defendant, then both defendants could be found guilty of involuntary manslaughter.The jury was also told that if either defendant was under the influence of intoxicants and incapable of properly operating the car and the non-driver, with knowledge of the co-defendant's condition and incapacity, knowingly permitted him to operate the car in a reckless manner without protest and encouraged such driving, then the non-driver would be guilty of criminal negligence and involuntary manslaughter in the event the jury found the driver guilty of the charge.

The Lewis and Fitzhugh cases are distinguishable from, and provide no support for the Trial Court's ruling in, this instance.At the time those cases were decided, "accessory before the fact" was defined as one who stands by, aids, abets, or assists, or who, not being present, advises and encourages the perpetration of the crime.The same was true when we decided Stacy v. State, 228 Ark. 260, 306 S.W.2d 852(1957), where the owner of a truck was responsible for having an intoxicated person drive it, and a death resulted.

The current Criminal Code treats the concept of accessories differently.An accessory before the fact is now referred to as an accomplice, and one who was formerly an accessory after the fact is now guilty of a separate crime--hindering apprehension and prosecution.SeeTyler v....