FROM THE GARLAND COUNTY CIRCUIT COURT. NO. CR 2013-608-I.
HONORABLE JOHN HOMER RIGHT, JUDGE.
Appellant: Gregg Austin Knutson, Attorney General.
Appellee: Kathryn Elizabeth Hall Henry, Attorney General.
HOOFMAN, Judge. KINARD and GLOVER, JJ., agree.
Richard Dean Bailey appeals after he was convicted by a
Garland County jury of murder in the second degree and was
sentenced to 360 months' imprisonment. Appellant's
sole contention on appeal is that the trial court erred in
denying his motion for a directed verdict. He specifically
argues that the State's evidence was insufficient to
rebut his claim of justification under Arkansas Code
Annotated section 5-2-607 (Supp. 2015). We affirm.
was charged by felony information with murder in the first
degree. Early on July 10, 2013, Anthony Ward's body was
discovered in the Hollywood Park area of Hot Springs,
Arkansas. Near his body, investigators found a blue bag
containing Ward's identification; several spots of blood
that led to an overlook where there was even more blood; flip
flops; a shell casing; a pair of blue gloves; and a number of
cigarette butts. Investigators also discovered a folding
knife in the front pocket of Ward's pants, which had his
blood on the handle and on the blade. Additionally, some
pedestrians walking along the creek found a " Rambo
style" knife later on that same day. After receiving
information that clothing had been dumped in a dumpster at
the Relax Inn in Hot Springs, investigators retrieved a pink
sleeveless shirt with a rip on the right side, a white
T-shirt, a pair of men's hiking boots, a pair of white
socks, and a pair of khaki pants. The clothing was all wet,
and a blue glove like the gloves found at the crime scene was
discovered inside the back pocket of the khaki pants.
appellant and his girlfriend, Debbie Huggins, had become
suspects, Detective Scott Lampinen interviewed them. A video
of Detective Lampinen's interview with appellant was
played for the jury. During the interview, appellant
indicated that he and Huggins had been walking through the
park after he had received treatment at the nearby hospital
for an injured finger. Huggins had stopped to use the
restroom and then wanted to soak her feet in the creek. While
they were at the creek, appellant explained that Ward
approached Huggins, ripped her shirt, and got on top of her.
Appellant indicated that he was only five or six feet away
from Huggins, and he admitted that he grabbed Ward's arm,
flipped him over, and stabbed him. Appellant also told
Detective Lampinen during the interview that Ward had tried
to hit him after pulling him off of Huggins and that Ward
said that he had a gun. Afterwards, appellant admitted that
he threw his knife, fled the scene, and threw the clothing in
Huggins testified at trial on appellant's behalf;
however, her version of events varied slightly. She testified
that she and appellant had entered the park after they left
the hospital, where they took several blue gloves. She
further testified that she did not soak her feet that night
but that she had walked over to the dock after she had used
the restroom. Appellant was not with her at that time, and
Ward grabbed her wrist, pulled her down, and ripped her
shirt. After she screamed for help, appellant pulled Ward off
of her and told her to run. She testified that she had
observed Ward falling down and appellant throwing his knife
toward the creek. She indicated that she had lost one of her
flip flops when they hid underneath a bridge before returning
to the hotel. She admitted that appellant threw her shirt and
his clothing away and that she had bought Clorox later that
evening from an EZ Mart to change her hair color.
Surveillance video from the Relax Inn and the EZ Mart was
admitted at trial. Huggins further admitted that she had told
Detective Lampinen that she was " out of harm's
way" after appellant pulled Ward off of her.
Additionally, she testified that she had told Detective
Lampinen that appellant had become angry and stabbed Ward
when Ward was not doing anything at that point. Despite the
fact that Huggins and appellant discussed calling law
enforcement after the incident, she testified that appellant
was too afraid to do so because he was on probation.
State introduced Johnathan Umphlett's testimony at trial.
Umphlett testified that he was housed in the same unit at the
same time that appellant was housed pending trial. He
testified that appellant had initially told him that he had
stabbed Ward in self-defense; however, appellant later
changed his story. He explained that appellant subsequently
admitted that he had stabbed Ward after appellant was
attempting to rob Ward, and Ward woke up and protested.
Umphlett additionally explained at trial that he only
contacted the prosecution with this information after he had
already received his sentence for sexual assault and that he
was not receiving anything in exchange for his testimony.
properly moved for a directed verdict after the State rested
and properly renewed his motion for a directed verdict at the
close of all the evidence. In relevant part, he argued that
the State failed to negate his defense that his actions were
justified. However, the trial court denied the motion, and
the jury found appellant guilty of the lesser-included
offense of murder in the second degree. The jury further
recommended a sentence of thirty years' imprisonment, and
appellant was sentenced in accordance with the jury's
recommendation. This timely appeal followed.
sole contention is that the trial court erred in denying his
motion for a directed verdict, arguing that the State's
evidence was insufficient to rebut his claim of justification
under Arkansas Code Annotated section 5-2-607. A motion for a
directed verdict is a challenge to the sufficiency of the
evidence. Wyles v. State, 368 Ark. 646, 249 S.W.3d
782 (2007). On an appeal from a denial of a motion for a
directed verdict, the sufficiency of the evidence is tested
to determine whether the verdict is supported by substantial
evidence, direct or circumstantial. Id. In
determining whether there is substantial evidence to support
the verdict, this court reviews the evidence in the light
most favorable to the State and considers only that evidence
which supports the verdict. Id. Substantial evidence
is that evidence which is of sufficient force and character
to compel a conclusion one way or the other beyond suspicion
or conjecture. Id.
person commits murder in the second degree if he or she
" [k]nowingly causes the death of another person under
circumstances manifesting extreme indifference to the value
of human life" or " [w]ith the purpose of causing
serious physical injury to another person . . . causes the
death of any person." Ark. Code Ann. §
5-10-103(a)(1)--(2) (Repl. 2013). Justification becomes a
defense when any evidence tending to support its existence is
offered, and once raised, it becomes an element that must be
disproved by the State beyond a reasonable doubt. Green
v. State, 2011 Ark.App. 700. Whether one is justified is
largely a matter of the defendant's intent and is
generally a factual question for the jury. Lewis v.
State, 2014 Ark.App. 730, 451 S.W.3d 591. A
defendant's intent is ordinarily not subject to proof by
direct evidence but must usually be established by
circumstantial evidence. Id. Critical to this
inquiry is the reasonableness of the accused's
apprehension that he was in danger of death or of suffering
great bodily harm. Id. Also critical is whether the
accused used all reasonable means within his power and
consistent with his personal safety to avoid the use of
deadly force. Id ; see also Ark. Code Ann.
§ 5-2-607. Furthermore, the jury may consider evidence
of flight as probative evidence of guilt. Lewis,
well settled that the credibility of witnesses is an issue
for the jury and not this court. Airsman v. State,
2014 Ark. 500, 451 S.W.3d 565. Furthermore, the jury is free
to believe all or part of any witness's testimony and may
resolve questions of conflicting testimony and inconsistent
evidence. Id. In doing so, the jury may choose to
believe the State's account of the facts rather than the
defendant's. Id. Additionally, the jury is not
required to ...