APPEAL
FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. 72CR-15-703 ]
HONORABLE MARK LINDSAY, JUDGE
Cross,
Gunter, Witherspoon & Galchus, P.C., by: Misty Wilson
Borkowski, for appellant.
Leslie
Rutledge, Att'y Gen., by: Vada Berger, Ass't
Att'y Gen., for appellee.
ROBIN
F. WYNNE, ASSOCIATE JUSTICE.
Rodolfo
Martinez appeals from a sentencing order of the Washington
County Circuit Court reflecting convictions for capital
murder, unlawful discharge of a firearm from a vehicle, and
terroristic act, as well as a sentence enhancement for
employing a firearm in the commission of a felony. He makes
the following arguments on appeal: (1) the trial court erred
in allowing hearsay testimony and failing to give a limiting
instruction to the jury; (2) the trial court erred by denying
his motions for directed verdict on the charges of capital
murder and terroristic act, Class B felony; (3) the trial
court imposed an illegal sentence because he was not found
guilty on the firearm enhancement; and (4) comments by the
trial court to the jury during the instructions on the
terroristic-act charges prejudiced him. We affirm.
Appellant
was charged and tried in connection with the death of Jimmy
Rodriguez. The State produced evidence at trial that
Rodriguez had been standing in front of his aunt and
uncle's home, conversing with a group of people when a
blue car drove past. The car returned and pulled up in front
of the house. The driver, Giovanni Vasquez, asked a question
of the group; then a passenger, identified as appellant,
fired several shots at the group. One of the bullets struck
Rodriguez, killing him. Bullet holes were discovered in the
residence as well as the residence next door. Appellant moved
for directed verdicts, and the motions were denied. Appellant
was convicted and sentenced as follows: life imprisonment on
the count of capital murder; 480 months' imprisonment on
the count of unlawful discharge of a firearm, Class Y felony;
60 months' imprisonment on the charge of unlawful
discharge of a firearm, Class B felony; 480 months'
imprisonment on the count of terroristic act, Class Y felony;
60 months' imprisonment on the two counts of terroristic
act, Class B felony; and 84 months' imprisonment for the
firearm enhancement.[1] This appeal followed.
Directed-Verdict
Motions
In his
second and third points on appeal, appellant argues that the
trial court erred by denying his motions for directed
verdict. A motion for directed verdict is a challenge to the
sufficiency of the evidence. Pratt v. State, 359
Ark. 16, 194 S.W.3d 183 (2004). Double jeopardy
considerations require us to consider a challenge to the
sufficiency of the evidence before other points are raised.
Id. This court has repeatedly held that in 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.
Navarro v. State, 371 Ark. 179, 264 S.W.3d 530
(2007). We affirm a conviction if substantial evidence exists
to support it. Id. 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.
Appellant
contends that the trial court erred by denying his motion for
directed verdict on the charge of capital murder. A person
commits capital murder if, with the premeditated and
deliberated purpose of causing the death of another person,
the person causes the death of any person. Ark. Code Ann.
§ 5-10-101(a)(4) (Supp. 2017). As recounted above, the
State produced the testimony of Eric Rodriguez, one of the
men who was standing in front of the house, that appellant
fired a gun at the group of men, killing Jimmy Rodriguez. The
State also produced testimony from Viviana Romero that
appellant told her he had shot Rodriguez. She further
testified that appellant had a gun when he came to her house
shortly after the shooting, that appellant told her he
urinated on his hands in her bathroom to "destroy gun
evidence," and that she and her brother first hid the
gun appellant had in their attic, then buried it outside.
Appellant
contends that the evidence is insufficient because Romero was
not a credible witness, a man named Jose Delatorre confessed
to the shooting and testified during the trial that he shot
Jimmy Rodriguez, and the State's firearms expert was
unable to link the bullet recovered from Jimmy
Rodriguez's body to the alleged murder weapon. It is the
sole province of the jury to determine a witness's
credibility, as well as the weight and value to be given to
the testimony. See Simpson v. State, 355 Ark. 294,
138 S.W.3d 671 (2003). Thus, the jury was free to believe the
testimony of Viviana Romero and Eric Rodriguez and disbelieve
the confession by Jose Delatorre. Further, there is nothing
in our capital-murder statute that requires the State to
prove anything regarding the weapon alleged to have been
used. Viewing the evidence in the light most favorable to the
State, the evidence is sufficient to support the conviction
for capital murder.
Appellant
also contends that the trial court erred by denying his
motion for directed verdict as to the two counts of
terroristic act, Class B felony, [2] because Romero contradicted
herself and had motive to lie, police were unable to link the
bullets recovered from the residences to the alleged murder
weapon, and there was no proof that the bullets recovered
were fired during the incident. A person commits terroristic
act, Class B felony, if the person shoots at an occupiable
structure with the purpose to cause injury to a person or
damage to property. Ark. Code Ann. § 5-13-302(a)(2)
(Repl. 2013).
The
State produced testimony that appellant fired several rounds
toward a group of people standing in front of a residence.
The State is correct in its assertion that it was only
required to prove that appellant shot at an occupiable
structure with the intent to cause harm to a person or
property, and that it was not required to prove that actual
injury or damage occurred. The evidence adduced at trial was
sufficient for the jury to conclude that appellant shot at an
occupiable structure (the Rodriguez home) in an attempt to
cause injury to the people standing in front of it. Viewing
the evidence in the light most favorable to the State, the
evidence is sufficient to support the conviction on two
counts of terroristic act, Class B felony. We hold that the
trial court did not err by denying appellant's motions
for directed verdict on the charges of capital murder and
terroristic act, Class B felony.
Testimony
of Detective Hendrix
At
trial, Detective Michael Hendrix testified after Eric
Rodriguez. Appellant objected when Det. Hendrix was asked
about information Rodriguez gave him during an interview
following the shooting, arguing that Det. Hendrix's
responses would be inadmissible hearsay. The State responded
that the statements were not hearsay because they were not
being offered to prove the truth of the matter asserted, but
rather to explain Det. Hendrix's course of action.
Appellant also argued that the testimony of Det. Hendrix
would prejudice him by bolstering Eric Rodriguez's
earlier testimony. In response to the objection, the trial
court offered to give a limiting instruction concerning the
purpose of Det. Hendrix's testimony. Appellant agreed to
the trial court's offer and Det. Hendrix was permitted to
testify regarding Eric Rodriguez's responses to his
questioning. The trial court never gave the limiting
instruction.
On
appeal, appellant argues that the trial court erred by
permitting the hearsay testimony of Det. Hendrix and failing
to give the limiting instruction. The State contends that any
error in admitting Det. Hendrix's testimony was rendered
harmless by appellant's failure to object to
substantially similar testimony of a later witness. Det.
Hendrix testified that Eric Rodriguez told him that a blue
car driven by Giovanni Vasquez stopped in front of the house,
then "words were exchanged, and shots were fired."
Rodriguez also said that he recognized the shooter but did
not know his name. Later, Benaiah Townsend with the
Springdale Police Department testified without objection that
Eric Rodriguez stated during an interview that the car was a
blue Ford Focus driven by Giovanni Vasquez and that Rodriguez
had seen the shooter before but did not know his name. This
court will not reverse an evidentiary ruling absent a showing
of prejudice. Sauerwin v. State, 363 Ark. 324, 214
S.W.3d 266 (2005). Evidence that is merely ...