Toombs v. State

• Court: Arkansas Court of Appeals
• Writing for the Court: BART F. VIRDEN, Judge
• Citation: Toombs v. State, 2015 Ark. App. 71, No. CR-14-123 (Ark. App. Feb 11, 2015)
• Decision Date: 11 February 2015
• Docket Number: No. CR-14-123,CR-14-123
• Parties: ANTHONY DONNELL TOOMBS APPELLANT v. STATE OF ARKANSAS APPELLEE

2015 Ark. App. 71

ANTHONY DONNELL TOOMBS APPELLANT v. STATE OF ARKANSAS APPELLEE

No. CR-14-123

ARKANSAS COURT OF APPEALS DIVISION IV

FEBRUARY 11, 2015

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION

[NO. CR 12-3263]

HONORABLE LEON JOHNSON, JUDGE

AFFIRMED; and REMANDED FOR CORRECTION OF SENTENCING

BART F. VIRDEN, Judge

A Pulaski County Circuit Court jury convicted appellant Anthony Toombs of being a felon in possession of a firearm. He was sentenced as a habitual offender to forty years' imprisonment in the Arkansas Department of Correction, with fifteen years added pursuant to the firearm-enhancement statute. He was also convicted of first-degree murder and sentenced to thirty-five years' imprisonment with fifteen years added pursuant to the firearm-enhancement statute. On appeal, he raises four points for reversal. We affirm.

On August 19, 2012, officers from the Little Rock Police Department responded to a reported homicide at 1624 Brown Street. At the scene, police officers discovered the body of Eddie Larkin with a gunshot wound to the back of the head. Moran Ellis identified Anthony Toombs as the person with whom Mr. Larkin had argued over drugs the nightbefore, and told police that Mr. Toombs had been armed and acting aggressively.

Following the murder, Detective Tommy Hudson of the Little Rock Police Department developed a "photo spread" help identify the person responsible for the crime. He took the picture of the person he believed to be responsible and placed that photo in with six others that looked similar. On August 22, 2012, after several witnesses identified Mr. Toombs from this photo spread, Detective Hudson obtained a warrant for Mr. Toombs's arrest, and then attempted to call Mr. Toombs to convince him to surrender himself. When Detective Hudson called Mr. Toombs's home, he spoke instead to Mr. Toombs's wife, who said she would let Mr. Toombs know. Mr Toombs called back within an hour. Detective Hudson made an audio recording of the phone call, which was played at the trial. In the phone conversation, Mr. Toombs told Detective Hudson that he had given Mr. Larkin money for groceries, but Mr. Larkin spent it on drugs instead. When Mr. Toombs went back to retrieve the money, Mr. Larkin became aggressive, and Mr. Toombs shot him in self-defense. He told Detective Hudson that he "just pulled it off" without intent to kill. Mr. Toombs promised Detective Hudson he would turn himself in as soon he had gotten his affairs in order and hired an attorney. Detective Hudson read Mr. Toombs his Miranda rights, and advised Mr. Toombs that there was a warrant for his arrest, and that the police would be looking for him in the meantime.

Before dawn on August 23, 2012, North Little Rock Police Officer Ira Dale Whitney observed a truck run a stop sign. Officer Whitney attempted to stop the driver for a traffic violation, but the driver continued, running two more stop signs. The driver sped up to thirtymiles per hour when Officer Whitney turned on the siren, and after a few blocks a man jumped out of the truck and escaped down an alley. As he was leaving the truck, Officer Whitney shined the spotlight on the driver's face, getting a good look at him. A City of Little Rock employee's badge with Mr. Toombs's name and photograph on it was later found in the truck. Officer Whitney identified Mr. Toombs as the driver.

On August 29, 2012, Mr. Toombs, accompanied by his attorney, turned himself in to Detective Hudson.

I. Sufficiency of the Evidence

In his final point on appeal, Mr. Toombs asserts that the evidence was not substantial enough to support the verdict. We affirm the trial court. In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the State, considering only the evidence that tends to support the verdict. Sattefeld v. State, 2014 Ark. App. 633, 448 S.W.3d 211. We will affirm if the finding of guilt is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is that which is of sufficient force to compel a conclusion one way or the other beyond suspicion or conjecture. Id. The weight of the evidence and credibility of the witnesses are matters for the fact-finder, not for the trial court on a directed-verdict motion or this court on appeal. Id. The fact-finder is free to believe all or part of a witness's testimony, and may resolve all questions of conflicting testimony and inconsistent evidence. Id. For circumstantial evidence to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. White v. State, 2014 Ark. App. 587, 446 S.W.3d 193. The questionof whether the circumstantial evidence excludes every hypothesis consistent with innocence is a decision for the fact-finder, whose determination will not be disturbed unless it reached its verdict using speculation and conjecture. Id.

First-degree murder is defined as "with the purpose of causing the death of another person, the person causes the death of another person." Ark. Code Ann. § 5-10-102(a)(2) (Repl. 2002). A person acts with a particular purpose with respect to his conduct or a result of his conduct when it is his conscious object to engage in conduct of that nature or to cause the result. Ark. Code Ann. § 5-1-102(17) (Supp. 2011) and § 5-2-202(1) (Repl. 2006).

Viewed in the light most favorable to the State, the jury was able to reach its determination without using speculation or conjecture. The evidence supporting a conviction for first-degree murder was supplied by several witnesses and by expert testimony.

Witnesses Corey Wright and Moran Ellis made early statements, within the first hours and days after the crime, that Mr. Toombs and Mr. Larkin had been fighting the night before about bad drugs Mr. Larkin had sold Mr. Toombs and about money. Leheith Carter and Moran Ellis stated that they knew Mr. Toombs personally and recognized him that night. Carter, Ellis, and Wright all told police that evening that Mr. Toombs had a gun earlier, and though at the trial they denied the veracity of those previous statements, the State was able to cross-examine them about their changed recollection. At trial, Mr. Ellis said that he had lied the evening of the murder to lead police away from considering him as a suspect, and that he did not remember anything about the evening in question; however, his recorded statements were admitted to support his original testimony. In his recorded statements fromAugust 19 and 20, Mr. Ellis described in great detail how Mr. Toombs was holding a weapon, and how he hugged Mr. Toombs with the gun close to his own chest so that Mr. Toombs would not shoot Mr. Larkin. On cross-examination, Mr. Ellis admitted that he was dishonest at times and that he did not want to be at the trial that day.

Leifel Hudspeth testified at trial that he saw Mr. Larkin arguing with someone over drugs and that he identified Mr. Toombs in a photo spread a few days after the crime occurred, though at trial he said his identification was coerced. He was cross-examined on this assertion and admitted that he did make those statements in the few days after the crime.

Next, Detective Hudson testified that Mr. Toombs told him in a phone interview on August 22, 2012, that he shot Mr. Larkin in self-defense during an argument over misused money. In the taped phone conversation played at the trial, Mr. Toombs admitted that he owned an old gun. Witnesses for the State offered evidence that the gun was similar to the one used to kill Mr. Larkin and could have been used as the murder weapon. Detective Hudson further testified at trial that the crime scene looked like a struggle had occurred, but not necessarily a violent struggle where someone had fought for his life. This testimony supported the assertion that Mr. Toombs had not acted in self-defense. Detective Hudson testified that shooting someone in the head, as Mr. Larkin had been, was much more difficult to do than shooting someone in the body, supporting the idea that someone shot Mr. Larkin intentionally and to kill, and not during a struggle for Mr. Toombs's life.

As discussed previously, Officer Whitney of the North Little Rock Police Department presented evidence of Mr. Toombs's flight after being advised that he was wanted for themurder of Mr. Larkin.

Dr. Stephen Erikson, the Deputy Chief Medical Examiner of the Arkansas State Crime Lab, also testified for the State. First, he testified that there was no evidence that Mr. Larkin's gunshot wound occurred at close-range, supporting the State's assertion that the two men were not struggling and that Mr. Toombs did not shoot in self-defense. Dr. Erikson testified to the path of the bullet and that it was inconsistent with a ricochet-induced path. A straight path would indicate intent to shoot the victim in the head, according to the testimony of Dr. Erikson.

The evidence presented at trial was substantial enough that the jury did not have to resort to conjecture to convict Mr. Toombs of first-degree murder; therefore, we affirm on this point.

As for the sufficiency of the evidence that Mr. Toombs was a felon in possession of a firearm, we affirm. Arkansas Code Annotated section 5-73-103(a) (Supp. 2011) states that it is a crime for a person who has been convicted of a felony to possess or own a firearm. Subsection (c)(1)(B) states that a person who violates this section commits a Class B felony if the person's current possession of a firearm involves the commission of another crime. A certified copy of Mr. Toombs's felony robbery conviction was entered into evidence. Furthermore, Mr. Toombs admitted to being in possession of a firearm and admitted that he shot Mr. Larkin. Mr. Ellis told police in his first and second statements that Mr. Toombs had a firearm on the evening of August 19, 2012. At the close of the State's case Mr. Toombs moved for a directed verdict and...