Purifoy v. State

• Decision Date: 23 December 1991
• Docket Number: No. CR,CR
• Citation: 822 S.W.2d 374,307 Ark. 482
• Parties: Dary PURIFOY, Appellant, v. STATE of Arkansas, Appellee. 91-141.
• Court: Arkansas Supreme Court

Page 374

822 S.W.2d 374

307 Ark. 482

Dary PURIFOY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 91-141.

Supreme Court of Arkansas.

Dec. 23, 1991.

James B. Bennett, El Dorado, for appellant.

Clemantine Infante, Asst. Atty. Gen., Little Rock, for appellee.

CORBIN, Justice.

Appellant, Dary Purifoy, urges this court to reverse his convictions of first degree murder and second degree battery. A Union County jury returned the convictions, and sentenced appellant to prison terms of thirty-five years for the murder conviction and six years for the battery conviction. We affirm.

Appellant presents four arguments for reversal. Each of appellant's first two arguments encompasses dual challenges to the sufficiency of the evidence and to a variance in the charge contained in the information and the proof presented at trial. Appellant's first argument focuses on the battery conviction and his second argument focuses on the murder conviction. However, we confine our discussion of appellant's first two arguments to a single analysis given the similarities in each argument's relevant facts and applicable law.

The state presented the following proof at trial. On July 8, 1990, appellant was at Crab Apple Point in Calion, Arkansas. Appellant became angry with his girlfriend, Angela Lowery, after Lowery talked to another man at the club. Appellant and Lowery began pushing and hitting each other, and this altercation led to a fight breaking out between several men at the club. The fighters included appellant, David Nesbit, James Wright and Fred Hall on one side, and Scotty Hall and Renford Green on the other side. Another man, Aric Steve Lemons was at the club during the fight, but the state presented proof that Lemons was not involved in the fight. Following the fight, appellant and David Nesbit left Crab Apple Point, and Scotty Hall, Aric Lemons, and Green went down to the lake.

Appellant and David Nesbit returned to the area a few minutes later carrying loaded guns. Appellant was armed with a shotgun and Nesbit carried a .22 rifle. Appellant and Nesbit walked toward the lake where some of the men involved in the earlier fight were standing. Other than appellant and Nesbit, no one in the area was armed. When Lemons decided to go to his car, someone yelled, "There he is," and appellant and Nesbit began shooting at Lemons. Lemons sustained two gunshot wounds in his chest and shotgun wounds in his right hand, neck, right leg, and right foot. He subsequently died.

During the shooting incident, the crowd at the lake began to run. Testimony indicated that appellant and Nesbit fired toward the crowd. James Wright, a member of the crowd, sustained bullet wounds in both legs, and testified that a .22 bullet remained in one of his legs.

The state subsequently filed an information charging appellant and David Nesbit with first degree murder for causing the death of "Arie Steve Lemons." The information also charged appellant alone with first degree battery for causing physical injury to James Wright by means of a deadly weapon.

Appellant asserts three specific challenges to the sufficiency of the evidence supporting his convictions. We interpret his primary argument to be that sufficient evidence does not exist to support either the murder or battery conviction because the state's proof indicated that Lemons' fatal wounds and Wright's leg wounds were inflicted with a .22 rifle. Appellant relies on the proof that established Nesbit was armed with a .22 rifle while appellant carried a shotgun.

We must affirm if we find substantial evidence to support appellant's convictions. Smith v. State, 306 Ark. 483, 815 S.W.2d 922 (1991); Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). In determining whether there is substantial evidence, we consider only the evidence that is favorable to the state and supports appellant's convictions. Smith, supra; Crossley v. State, 304 Ark. 378, 802 S.W.2d 459 (1991). In cases such as the instant one, where the theory of accomplice liability is implicated, we affirm a sufficiency of the evidence challenge if substantial evidence exists that the defendant acted as an accomplice in commission of the alleged offense. Ark.Code Ann. § 5-2-402(2) (1987).

The state's evidence illustrated the intertwined nature of the activities of appellant and David Nesbit on the evening of July 8 1990. Scotty Hall testified that appellant and Nesbit fought together in the altercation at the club. Curtis Clark, appellant's half-brother, testified that appellant and Nesbit took a shotgun and a .22 rifle out of Clark's vehicle and "took off" together. Testimony regarding the shooting incident itself indicates that one of the two men threw a gun to the other man, and that both appellant and Nesbit shot at Aric Lemons and then shot towards the crowd at the lake.

Ark.Code Ann. § 5-2-403(a)(2) (1987) provides that a person acts as an accomplice of another person in the commission of an offense if, with the requisite intent, he aids, agrees to aid, or attempts to aid the other person in commission of the offense. Nelson v. State, 306 Ark. 456, 816 S.W.2d 159 (1991); Pilcher v. State, 303 Ark. 335, 796 S.W.2d 845 (1990). We have stated that the following factors are relevant in determining the connection of an accomplice with the crime: presence of the accused in the proximity of a crime, opportunity, and association with a person involved in the crime in a manner suggestive of joint participation. Hooks v. State, 303 Ark. 236, 795 S.W.2d 56 (1990).

In this case, the proof at trial was amply sufficient in illustrating the joint nature of appellant's and Nesbit's activities. While appellant argues that he never discussed hurting anyone and never intended to help Nesbit hurt anyone, we have held that concert of action to commit an unlawful act may be shown by circumstantial evidence, without direct proof of a conspiracy agreement. King v. State, 271 Ark. 417, 609 S.W.2d 32 (1980). We have further held that under the accomplice liability statute, a defendant may properly be found guilty not only of his own conduct, but also by that conduct of his accomplice. Id. When two or more persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). There is no distinction between principals on the one hand and accomplices on the other, insofar as criminal liability is concerned. Id. As the proof at trial was amply sufficient in illustrating the joint nature of appellant's and Nesbit's activities, the fact that Nesbit's shots may have actually inflicted Lemons' fatal injuries and Wright's leg wounds is irrelevant to the question of appellant's criminal liability for the offenses.

Appellant's second challenge to the sufficiency of the evidence argues that the state did not prove appellant possessed the requisite intent to be convicted of first degree murder or second degree battery. Ark.Code Ann. § 5-10-102(a)(2) (Supp.1989) provides that a person commits murder in the first degree if he causes the death of another person with the purpose of causing the death of another person. This court has recognized that intent or state of mind is seldom capable of proof by direct evidence and must usually be inferred from the circumstances surrounding the killing. Williams v. State, 304 Ark. 509, 804 S.W.2d 346 (1991); Starling v. State, 301 Ark. 603, 786 S.W.2d 114 (1990). The factors relevant in inferring the intent necessary for first degree murder include the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Williams, supra. In the instant case, the state produced testimony that appellant fired a shotgun at an unarmed Aric Lemons from an approximate distance of fifteen feet. The pathologist who conducted the autopsy on Lemons testified that Lemons sustained a series of shotgun injuries in his neck and limbs. Based on this evidence, it is certainly reasonable to conclude that appellant acted purposefully as an accomplice to David Nesbit in causing the death of Aric Lemons.

Ark.Code Ann. § 5-13-202 (1987) sets out the elements of second degree battery:

(a) A person commits battery in the second degree if:

(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;

(2) With the purpose of causing physical injury to another person, he causes physical injury to any person by means of a deadly weapon (3) He recklessly causes serious physical injury to another person by means of a deadly weapon[.]

We have held that the only specific intent required by the statute is the intent to cause physical injury. Holmes v. State, 288 Ark. 72, 702 S.W.2d 18 (1986). In this case, the state presented evidence that appellant fired a shotgun directly at the crowd of which Mr. Wright was a member. Based on this evidence, a jury could certainly conclude that appellant possessed the necessary intent to cause injury required by the second degree battery statute.

Appellant's third challenge to the sufficiency of the evidence argues that the trial court erred in instructing the jury under subsections (a)(1) and (a)(3) of the second degree battery statute because the state failed to prove James Wright suffered a "serious physical injury." Ark.Code Ann. § 5-1-102(19) (1987) defines serious physical injury as an injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Mr. Wright testified that he spent a week in the hospital to recover from his gunshot wounds. He further testified that one of his legs still "gives out" on him. We have held that the question of whether injuries constitute a temporary or protracted impairment of a function of bodily member or organs is for the jury to decide....