KEITH D. SHELTON APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE JEFFERSON COUNTY CIRCUIT COURT [NO. 35CR-14-448]
HONORABLE JODI RAINES DENNIS, JUDGE
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Adam Jackson, Ass't
Att'y Gen., for appellee.
D. VAUGHT, Judge
Keith Shelton was convicted by a Jefferson County jury of one
count of first-degree murder and three counts of committing a
terroristic act. On appeal, he challenges the sufficiency of
the evidence, contending that his conduct did not meet the
statutory definition of a terroristic act; therefore, the
State failed to prove the three terroristic-act convictions
and the first-degree murder conviction. We affirm.
at trial established that on August 13, 2014, Alfred Burton,
Jr., was driving in Altheimer, Arkansas, with two
passengers-Thrisdon Eason in the front and Romona Conner in
the back. As Burton traveled down West Third Street, Shelton,
driving a truck, passed Burton headed in the opposite
direction. Both vehicles slowed and then stopped. Shelton
backed his truck up to Burton's vehicle, and the two
briefly spoke. Shelton exited his vehicle, walked to the open
driver's-side window of Burton's vehicle, and punched
Burton in the head. Eason then exited Burton's car and
approached Shelton. Conner ran out of Burton's vehicle
but remained nearby. Eason and Shelton exchanged words and
scuffled. Burton testified that he ordered Eason to return to
Burton's car, which Eason did. At that time, Shelton
walked to his truck and retrieved a gun. Burton testified
that he opened his car door and had one foot on the ground
when he looked up and saw the barrel of Shelton's gun
being pointed at him. Burton said that Shelton shot him.
Conner testified that Shelton fired his gun five or six times
into the front driver's side of Burton's vehicle and
that both Burton and Eason were in the vehicle as Shelton
fired into it. Another witness, Ja'vreon McGown,
testified that Burton and Eason were in the vehicle when
Shelton fired his gun. Eason was struck twice-once in the arm
and once in the chest-and he died as a result of the chest
injury. Burton was struck in the head and survived.
jury convicted Shelton of one count of first-degree murder
and three counts of committing a terroristic
act. The jury sentenced Shelton to
thirty-five years' imprisonment for the first-degree
murder of Eason, thirty years' imprisonment for the
terroristic act against Burton, ten years' imprisonment
for the terroristic act against Eason, and five years'
imprisonment for the terroristic act against Burton's
vehicle. The jury recommended that only the thirty-five and
thirty-year terms run consecutively. The jury further found
that Shelton employed a firearm as a means of committing
first-degree murder and each of the terroristic-act counts;
however, it sentenced him to serve zero years for the
enhancements. The circuit court accepted the jury's
recommendations and sentenced Shelton to a total of
sixty-five years' imprisonment. This appeal followed.
appeal, Shelton challenges the sufficiency of the evidence
supporting all four of his convictions. He contends that his
conduct did not meet the statutory definition of a
terroristic act because the State failed to prove that he was
firing "at a conveyance" that Burton was occupying.
He argues that if the State failed to prove a terroristic
act, then it also failed to prove first-degree felony murder.
reviewing a challenge to the sufficiency of the evidence, we
view the evidence in the light most favorable to the State
and consider only the evidence that supports the verdict.
Ealy v. State, 2017 Ark.App. 35, at 2, ___
S.W.3d___, ___. We affirm a conviction if substantial
evidence exists to support it. Id., S.W.3d at .
Substantial evidence is that which is of sufficient force and
character that it will, with reasonable certainty, compel a
conclusion one way or the other, without resorting to
speculation or conjecture. Id., ___ S.W.3d at___.
person commits first-degree murder if "[t]he person
commits or attempts to commit a felony; and in the course and
in the furtherance of the felony . . . the person . . .
causes the death of any person under circumstances
manifesting extreme indifference to the value of human
life." Ark. Code Ann. § 5-10-102(a)(1)(A)-(B)
(Repl. 2013). In this case, the underlying felony was the
commission of a terroristic act.
person commits a terroristic act if, while not in the
commission of a lawful act, the person shoots at or in any
manner projects an object at a conveyance which is being
operated or which is occupied by another person with the
purpose to cause injury to another person or damage to
property. Ark. Code Ann. § 5-13-310(a)(1). Shelton
focuses his appeal on the interpretation of the phrase
"shoots . . . at a conveyance" and raises two
points. He argues that he was not firing at Burton's
vehicle-he was firing at Burton-and that Burton was not
occupying the vehicle. Shelton cites Burton's testimony
that he had opened his door and had one foot out of his
vehicle when he was shot. From that testimony, Shelton argues
that "it can be inferred that [Burton] was stepping from
his vehicle, that the driver's door was open, and that he
was no longer in control of his vehicle behind the wheel
operating it." Shelton continues, arguing that he had no
interest in the vehicle and "was solely directing his
shots, although somewhat inaccurately, at the person he was
confronting, Mr. Burton." We disagree.
intent to shoot at a vehicle is not required under the
terrorisic-act statute. In Frost v. State, 2010
Ark.App. 163, a jury convicted the appellant of committing a
terroristic act based on evidence that he shot his victim
four times as she sat alone in her car. The appellant argued
on appeal that the record contained no evidence that he
intended to shoot at a vehicle because he was shooting at the
victim. We rejected the argument and affirmed, holding that
section 5-13-310 only requires proof that the appellant shot
at a conveyance occupied by the victim with the purpose of
injuring her. Frost, 2010 Ark.App. 163, at 2 (citing
Stephenson v. State, 373 Ark. 134, 137, 282 S.W.3d
772, 776 (2008); Warren v. State, 103 Ark.App. 124,
128-30, 286 S.W.3d 768, 772-73 (2008)); see also
Ealy, 2017 Ark.App. 35, at 4, S.W.3d at (affirming the
terroristic-act conviction; stating that the plain language
of the terroristic-act statute provides that the necessary
intent or goal of the action is the purpose to cause injury
to another person or damage to property and that shooting at
or projecting an object at a conveyance is a secondary act).
Therefore, based on Frost and Ealy, the
State was not required to prove that Shelton intended to
shoot at a conveyance that was occupied by Burton and Eason;
just that Shelton in fact shot at the conveyance they were
occupying regardless of whether he intended to do so.
when viewing the evidence favorable to the State, we are
satisfied that there was substantial evidence that Shelton
shot at a conveyance that was occupied by Burton. Burton
testified that he had opened his car door and had one foot on
the ground, but he was still in the vehicle when Shelton shot
him. His testimony was clear that he never got out of his
vehicle. Conner testified that Burton was in the vehicle as
Shelton fired into it. McGown testified that Burton was in
the vehicle when Shelton fired his gun. One eyewitness's
testimony is sufficient to sustain a conviction. Hawkins
v. State, 2009 Ark.App. 675, at 4. Here, the jury heard
the testimony of three eyewitnesses.
record, the only evidence that Burton was standing outside
his vehicle with one foot on the ground and one foot inside
the car came from Shelton. The jury was not required to
believe Shelton's testimony. The credibility of witnesses
is an issue for the jury and not the court. Moore v.
State, 372 Ark. 579, 581, 279 S.W.3d 69, 72 (2008). Our
supreme court has held that the jury may resolve questions of
conflicting testimony and inconsistent evidence and may
choose to believe the State's account of the facts rather
than the defendant's. Coggin v. State, 356 Ark.
424, 436, 156 S.W.3d 712, 720 ...