Hunter Jr. v. State

• Decision Date: 22 June 2000
• Docket Number: 00-148
• Citation: 19 S.W.3d 607
• Parties: Tillman HUNTER, Jr. v. STATE of Arkansas 00-148 ___ S.W.3d ___ Opinion delivered
• Court: Arkansas Supreme Court

Tillman HUNTER, Jr. v STATE of Arkansas

00-148 ___ S.W.3d ___

Opinion delivered June 22, 2000

Supreme Court of Arkansas

Appeal from Sevier Juvenile Court; Ted C. Capeheart, Juvenile Judge; affirmed as modified.

1. Criminal procedure -- negligence & recklessness distinguished. -- Negligent conduct is distinguished from reckless conduct primarily in that it does not involve conscious disregard of a perceived risk; to be held to have acted negligently under Ark. Code Ann. § 5-10-105 (Repl. 1997), it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it; it requires only a finding that under the circumstances he should have been aware of it, and his failure to perceive it was a gross deviation from the care that a reasonable, prudent person would exercise under those circumstances.

2. Evidence -- sufficiency of evidence in delinquency case --standard of review. -- In reviewing the sufficiency of the evidence in a delinquency case, the supreme court applies the same standard of review as in criminal cases; when sufficiency of the evidence is challenged on appeal, the court considers only proof that tends to support the finding of delinquency, and it views the evidence in the light most favorable to the State; the supreme court will affirm if the delinquency adjudication is supported by substantial evidence.

3. Evidence -- conviction supported by substantial evidence --denial of directed-verdict motion affirmed. -- There was substantial evidence showing that appellant's driving involved a gross deviation from the standard of care that a reasonable person would have observed in his situation where appellant had previously operated his motorcycle on the same highway and was fairly familiar with the roads, as well as the double-yellow, no-passing lines, appellant testified that it was raining as he followed behind the logging truck, and he had his mind set on passing the truck, although he was unable to see because of mist and spray coming from the back of the logging truck, he still attempted to pass it as he crossed double yellow lines going up a hill, and, when he began to pass, the mist and spray only cleared when he was about "one-third of the way up the truck," and that was when he first saw the vehicle coming from the opposite direction over the crest of the hill; based on these facts alone, the trial judge was correct in denying appellant's motion for directed verdict.

4. Juveniles -- victim-impact evidence -- not intended for use in juvenile proceedings. -- Evidence presented under Ark. Code Ann. § 16-97-103 (Supp. 1999), the statute concerning use of victim-impact evidence, is intended to be used to give the sentencer, whether the trial judge or the jury, all evidence relevant to sentencing; it must be relevant, and it is governed by the rules of evidence regarding admissibility and exclusion; while the rules of evidence and the rules of criminal procedure apply in juvenile proceedings, § 16-97-103 is neither a rule of evidence nor a rule of criminal procedure; section 16-97-103 and its reference to victim-impact evidence simply do not appear in those portions of the juvenile code regarding disposition; juveniles are not "convicted" and "sentenced"; instead they are "adjudicated" and have their cases go to "disposition."

5. Juveniles -- seriousness of offense clearly shown -- use of victim-impact evidence unnecessary. -- Where the court already knew that appellant's conduct was responsible for the deaths of three adults and a viable fetus, and the delinquency petition itself informed the court that people had been killed and that appellant was charged with three misdemeanor counts of negligent homicide, victim-impact evidence simply was unnecessary to impress upon the court the seriousness of the offense.

6. Juveniles -- disposition hearings are not criminal proceedings -- victim-impact evidence improperly allowed. -- Juvenile disposition hearings are not criminal proceedings, and the mere fact that evidence may be relevant in one context does not mean that it is relevant in all contexts; the trial judge was in error in ruling victim-impact evidence permissible in appellant's juvenile disposition hearing.

7. Appeal & error -- ruling allowing victim-impact evidence in error -- error insufficient to mandate reversal. -- While the judge appeared quite mindful of the victim-impact testimony when he entered his disposition order, he placed appellant on probation until he turned eighteen years old, scheduled him for a ten-week boot camp program, required him to perform 100 hours of public service for each person killed and injured as a result of his gross negligence, and suspended his driver's license for one year, all of which disposition was authorized by statute; the supreme court could not ascertain what prejudice appellant suffered or how he would benefit by the remand of the case for another disposition hearing, since the supreme court will not review the severity of dispositions so long as they are authorized by law, as was the case here; in these circumstances appellant failed to show exactly how he was prejudiced by the judge's erroneous ruling that permitted victim-impact testimony.

8. Appeal & error -- point not raised below -- not preserved for appeal. -- Where appellant never objected to the pronounced dispositions in order to preserve the point raised on appeal, that the trial judge erred because the judge sentenced appellant on the basis of retributive punishment as opposed to considering the best interest of the juvenile, the issue was not addressed on appeal; affirmed as modified. [cme]

Kinard, Crane & Butler, P.A., by: David F. Butler, for appellant.

Mark Pryor, Att'y Gen., by: Valerie L. Kelly, Ass't Att'y Gen., for appellee.

Tom Glaze, Justice.

Appellant Tillman Hunter, age fifteen years, was driving a pickup truck and passing a logging truck on Highway 71 north of Magnolia when he collided with an oncoming vehicle, containing three women, Teresa Rich, Doris Chaney, and Rachael Hill, and a fourteen-month-old girl, Kyla Hill. The three women died. One of the women was pregnant, and her fetus was killed, as well. Tillman was charged as a juvenile with three counts of negligent homicide. After a trial, and after the judge denied Tillman's motion for directed judgment, the judge found Tillman committed the offenses, and adjudicated him a delinquent. The judge then allowed the State to introduce victim-impact evidence over Tillman's objection. Subsequently, the judge entered a disposition order, sentencing Tillman to (1) probation until he is eighteen years old, (2) a ten-week boot camp program, and (3) performance of 400 hours of community service. Also, Tillman's driver's license was revoked for one year. He raises three points for reversal.

We first consider Tillman's argument that the trial judge erred by refusing to grant a directed verdict. In making this argument, he asserts the evidence was insufficient to support the judge's findings of negligent homicide. We disagree.

The negligent homicide offenses with which Tillman was charged are based on Ark. Code Ann. § 5-10-105(b)(1) (Repl. 1997), which provides that a person commits negligent homicide if he negligently causes the death of another person. Section 5-10-105(b)(2)designates the offense a Class A misdemeanor.¹ Negligence under the statute is a term of art defined under Ark. Code Ann. § 5-2-202(4) (Repl. 1997), which provides as follows:

"Negligently." A person acts negligently with respect to attendant circumstances or a result of his conduct when he should be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation. (Emphasis added.)

In the commentary to the above section, it is noted that negligent conduct is distinguished from reckless conduct primarily in that it does not involve the conscious disregard of a perceived risk. In order to be held to have acted negligently under § 5-10-105, it is not necessary that the actor be fully aware of a perceived risk and recklessly disregard it. It requires only a finding that under the circumstances he should have been aware of it and his failure to perceive it was a gross deviation from the care a reasonable, prudent person would exercise under those circumstances. See Phillipsav. State, 6 Ark. App. 380, 644 S.W.2d 288 (1982).²

In reviewing the sufficiency of the evidence in a delinquency case, we apply the same standard of review as in criminal cases. McGill v. State, 60 Ark. App. 246, 962 S.W.2d 382 (1998). When the sufficiency of the evidence is challenged on appeal, we consider only the proof that tends to support the finding of delinquency, and we view the evidence in the light most favorable to the State. Id. We will affirm if the delinquency adjudication is supported by substantial evidence. Id.

In reviewing the record, it clearly reveals substantial evidence showing Tillman's driving involved a gross deviation from the standard of care that a reasonable person would have observed in Tillman's situation. Tillman had previously operated his motorcycle on this same highway and said that he was fairly familiar with the roads, as well as the double-yellow, no-passing lines.³ Tillman testified it was raining as he was following behind the logging truck for a couple of miles, and he had his mind set on passing the truck. He further conceded that, although he was unable to see because of the mist and spray coming from the back of the logging truck, he still attempted to pass it as he crossed double yellow lines going up a hill. Tillman also related that, when he began to pass, the...