FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-14-3256] HONORABLE BARRY ALAN SIMS, JUDGE
IN PART; REVERSED AND REMANDED IN PART.
Terrence Cain and Jimmy C. Morris, Jr., for appellant.
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, Judge.
Brandon Duane Williams was convicted by a Pulaski County jury
of first-degree domestic battering. On appeal, he contends
that the circuit court erred in denying his motions for
directed verdict. Williams also argues that this court should
reverse his conviction because during the State's closing
argument, the prosecutor made an inflammatory argument that
was "far beyond the bounds of the charges and evidence
in the case, and the argument was calculated solely to appeal
to the jury's passions rather [than] to its sense of
reason." Finally, Williams asserts that we should vacate
his sentence because during the sentencing phase of his
trial, the circuit court ordered its bailiff to handcuff him
and "the court did so without any regard for the
specific circumstances of his trial." For the following
reasons, we affirm in part and reverse and remand in part.
conviction arose from his conduct in the shooting of Cordell
Nichols in August 2014. On May 16, 2016, he was sentenced to
twenty years in the Arkansas Department of Correction (ADC).
His sentence was enhanced by twelve years for employing a
firearm in the commission of the offense and by an additional
eight years for committing the offense in front of a child,
for a total of forty years in the ADC.
trial, Williams moved for a directed verdict on the basis
that the evidence was insufficient as to first-degree
domestic battering because, at the time of the incident, he
was not a member of the victim's family or of the
victim's household. The circuit court denied both his
motion for directed verdict and his renewed motion for
directed verdict, which we now review.
Arkansas Code Annotated section 5-26-303(a)(1) (Repl. 2013),
a person commits first-degree domestic battering if the
person, with the purpose of causing serious physical injury
to a family or household member, causes serious physical
injury to a family or household member by means of a deadly
weapon. Family or household member specifically includes
"persons who presently or in the past have resided or
cohabited together." See Ark. Code Ann. §
5-26-302(2)(F). The statute contains no time limits.
motion for a directed verdict is a challenge to the
sufficiency of the evidence. Steele v. State, 2014
Ark.App. 257, 434 S.W.3d 424. When the sufficiency of the
evidence is challenged on appeal from a criminal conviction,
we consider only that proof that supports the conviction.
Singleton-Harris v. State, 2014 Ark.App. 436, 439
S.W.3d 720. We view that evidence and all reasonable
inferences deducible therefrom in the light most favorable to
the State. Davis v. State, 2015 Ark.App. 234, 459
S.W.3d 821. We will affirm if the finding of guilt is
supported by substantial evidence. Id. Evidence is
substantial if it is of sufficient force and character to
compel reasonable minds to reach a conclusion and pass beyond
suspicion and conjecture. Clayton v. State, 2011
Ark.App. 692. The jury is free to believe all or part of a
witness's testimony, and we do not weigh the credibility
of witnesses on appeal, as that is a job for the fact-finder
and not the appellate court. Sizemore v. State, 2015
Ark.App. 295, 462 S.W.3d 364.
the evidence, as we must, in the light most favorable to the
State, the record shows that Williams was 22 years old when
he shot Cordell Nichols. Nichols married Williams's
mother when Williams was "about seven or eight."
They were married for six and a half years before they were
divorced. According to Williams, he was between 13 and 15
years old when he stopped living with Nichols. Williams's
mother later passed away, but Nichols said that he and
Williams remained in contact, and he continued to treat him
like a son. Nichols is the father of several children, three
of whom are Williams's sisters. It was a dispute
concerning the sisters that led Williams to shoot Nichols.
believe it is clear from the evidence that Williams and
Nichols were persons who in the past had resided together.
The evidence at trial established, and Williams admits in his
brief, that he had resided with Nichols for several years
while his mother was married to Nichols. Williams also does
not deny that the statute contains no express time
limitation. Therefore, the circuit court properly denied his
motions for directed verdict.
second point on appeal is that his conviction should be
reversed because of an improper closing argument by the
State. In reviewing closing arguments, the circuit court
"has discretion to control closing argument and is in a
better position to determine the possibility of prejudice by
observing the argument first hand." Wainwright v.
State, 302 Ark. 371, 387, 790 S.W.2d 420, 428 (1990).
The appellate court will not reverse the action of the
circuit court in matters pertaining to its controlling,
supervising, and determining the propriety of the arguments
of counsel in the absence of manifest gross abuse.
Rowland v. State, 263 Ark. 77, 84, 562 S.W.2d 590,
594 (1978). "Although it is not good practice for
counsel to inject their personal beliefs into the closing
arguments, mere expressions of opinion by counsel in closing
argument are not reversible error so long as they do not
purposely arouse passion and prejudice." Jefferson
v. State, 372 Ark. 307, 321-22, 276 S.W.3d 225-26 (2008)
(citing Neff v. State, 287 Ark. 88, 94, 696 S.W.2d
736, 740 (1985)).
trial, the gun used to shoot Nichols was not introduced into
evidence because it was never found. Williams testified that
although he entered Nichols's house with a gun, it was
actually his friend Alonti Weaver who shot Nichols. After the
shooting, both men ran through a field near Nichols's
house to get to the car. Police pulled the car over shortly
thereafter. The prosecutor stated the following in closing
argument: "Why is that? Because Brandon Williams had the
gun used in this crime. It's probably ditched in that
field somewhere on his way back to the getaway car that he
had his wife slide into the driver's seat of."
Williams objected, arguing that there was no evidence
"about something ...