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Huskey v. State

Court of Appeals of Arkansas, Division IV

February 20, 2019



          Potts Law Office, by: Gary W. Potts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., for appellee.


         Appellant Jeremy Louis Huskey was tried before a Drew County Circuit Court jury and convicted of aggravated residential burglary and manslaughter. Appellant was sentenced to an effective prison term of fifty-five years plus a $10, 000 fine. On appeal, appellant challenges (1) the sufficiency of the evidence to support that he was the person who committed these crimes; (2) the admission of the deceased victim's statement under the excited-utterance exception to the rule against hearsay; (3) the admission of that statement in violation of appellant's right to confront the witness against him; and (4) the admission of a prior bad act under Rule 404(b). We affirm.

         We first consider the sufficiency-of-the-evidence argument. The victim, sixty-seven-year-old George Flowers, was in his residence when someone broke in and beat him severely. George later died from the blunt-force trauma to his head. Appellant challenges whether the State presented sufficient evidence to identify him as the perpetrator.

         The standard of appellate review is well settled. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Estrada v. State, 2011 Ark. 3, 376 S.W.3d 395. Substantial evidence is evidence forceful enough to reach a conclusion one way or the other beyond suspicion or conjecture. Smith v. State, 352 Ark. 92, 98 S.W.3d 433 (2003). When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). We examine all the evidence including evidence allegedly admitted erroneously. Barron-Gonzalez v. State, 2013 Ark.App. 120, 426 S.W.3d 508. The jury has the sole authority to evaluate the credibility of evidence and to apportion the weight to be given to the evidence. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158.

         The evidence in this case is reviewed in the light most favorable to the State. Christy Johnson had allowed George to live with her for about a year, but she wanted him to move. Christy's brother John Etheridge lived in a house about seventy-five yards away from Christy's house. Christy moved to John's house while she waited for George to find somewhere else to live. Christy was dating thirty-eight-year-old appellant, and John had seen appellant drive a small blue car when he came over to visit Christy. John had heard Christy complaining about George to appellant, who told Christy that "if you want him out, I'll get him out." John remembered that appellant had gone over to confront George, during which encounter appellant "b**ch slapped" George.

         About two weeks later, at around 10:30 at night, John saw the same car being driven up the driveway and stopping at Christy's house; the car departed less than ten minutes later. John and his son went outside and saw George on the ground between the two houses; they helped him up and to John's house, where John's mother tended to George's bloody wounds. George had a deep cut on his left elbow; his nose was cut and appeared nearly torn off; he had a head injury behind his left that looked like he had been hit with a tire tool; his bottom lip appeared to be fileted; his hands were torn up. George was upset and crying, and John asked George what happened.

         George told John that appellant had come to the door, stormed inside, hit him in the face, knocked him against the entertainment center, caused him to fall on the floor, and kicked him repeatedly. George knew it was appellant because, although his attacker had a shirt wrapped around his face, he recognized appellant's voice; appellant had told George to "get the f**k out of Christy's house." John called 911 and reported that appellant had beaten up George. Law enforcement officers responded to the call and took pictures of George's injuries, but George refused medical treatment. A sheriff's deputy affirmed that George told him who had assaulted him. A few days later, George's condition deteriorated, he was hospitalized, and he ultimately died. An autopsy revealed all the injuries to George's thin body and the damage to his head. His death was ruled a homicide because he died as a result of blunt-force head trauma.

         Christy admitted that she had initially lied to the police, telling them that she and appellant had been at his aunt's house, but in truth, appellant had gone to see George to convince him to move out. Appellant, who had been drinking, came back about fifteen minutes later and told Christy that George "would leave now." She said that appellant wanted to get rid of George so he could move in with Christy. Christy later asked appellant why he had done that to George, and appellant replied, "You wanted him out of your house." Christy said that she initially lied because appellant told her to, and she was afraid of him.

         Appellant challenges the State's proof by arguing that there were no witnesses to the attack, there was no DNA to connect him to the attack, and the victim identified appellant only by his voice and not by his face. This argument is unpersuasive. The victim positively identified appellant as the man who had severely beat him, and appellant admitted to Christy that he had attacked George to get him to move. We consider only the evidence that supports the verdict, and credibility findings are for the jury to make. We hold that there is substantial evidence to support the jury's finding that appellant was guilty of aggravated residential burglary and manslaughter.

         The remaining three points on appeal challenge the admission of certain testimony. On appellate review of evidentiary rulings, we recognize that a circuit court has broad discretion, and we will not reverse an evidentiary ruling absent an abuse of discretion. Hopkins v. State, 2017 Ark.App. 273, 522 S.W.3d 142. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Owens v. State, 2017 Ark.App. 109, 515 S.W.3d 625. In addition, we will not reverse absent a showing of prejudice, as prejudice is not presumed. Edison v. State, 2015 Ark. 376, 472 S.W.3d 474.

         Appellant first challenges the circuit court's finding that George's statement to John identifying appellant as the perpetrator fell within the excited-utterance exception to the rule against hearsay. Arkansas Rule of Evidence 803(2) provides that an "excited utterance" is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Factors to consider are the lapse of time, the age of the declarant, the physical and mental condition of the declarant, the characteristics of the event, and the subject matter of the statement. Wright v. State, 368 Ark. 629, 249 S.W.3d 133 (2007). For the exception to apply, there must be an event that excites the declarant. Id. It must appear that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation. Id. The statements must be uttered during the period of excitement and must express the declarant's reaction to the event. Id. It is for the circuit court to determine whether the statement was ...

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