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APPEAL
FROM THE BOONE COUNTY CIRCUIT COURT [NO. 05CR-16-188],
HONORABLE GORDON WEBB, JUDGE
Teri L.
Chambers, Arkansas Public Defender Commission, for appellant.
Leslie
Rutledge, Atty Gen., by: Chris R. Warthen, Asst Atty Gen.,
for appellee.
OPINION
RAYMOND
R. ABRAMSON, Judge
A
Boone County Circuit Court jury convicted appellant Joshua
Dulle of second-degree murder and sentenced him to sixteen
years in the Arkansas Department of Correction. On appeal,
Dulle challenges the sufficiency of the evidence supporting
his conviction. For the following reasons, we affirm.
On
February 20, 2016, six-month-old Miles Dunaway was rushed to
the North Arkansas Regional Medical Center emergency room in
critical condition caused by a severe neurological injury.
Miles was flown to Arkansas Childrens Hospital in Little
Rock where he died from his injuries the following day. At
4:50 a.m. on February 20, Miless mother, Alexis Dunaway, had
dropped Miles off with his babysitters, Joshua Dulle and his
girlfriend, Kimberly McCoy. Dulle babysat Miles because he
believed he was the childs father. McCoy and Dulle had their
two biological children living in their home when they were
watching Miles.
Dunaway recalled nothing was unusual with Miles when she
dropped him off with McCoy and Dulle. McCoy gave him a bottle
and changed his diaper and left for work about 8:30 that
morning. McCoy told Dulle to bathe Miles because he was
sweaty. Dulle was the lone adult with Miles for approximately
forty-five minutes before finding Miles unresponsive and not
breathing. He later told officers three different versions of
what unfolded.
Dulle
stated that Miles was "active in the water" during
the shower, and afterward, he left Miles alone in the room
between two and five minutes. When Dulle returned, Miles was
either not moving or was moving only his legs according to
contradictory statements made by Dulle. However, all of the
versions of his story included that Miless eyes were rolled
back in his head. Medical records indicated that Miles had
been found unresponsive and not breathing on a previous
occasion.[1] At that time, he was diagnosed with
laryngomalacia, a condition that can cause difficulty
breathing; his mother reported continued breathing problems
after that.
At one
point, Dulle told officers that he shook Miles a number of
times and may have "tapped" him on the face. He
also pulled his bib off his neck and claimed to have tripped
over a baby gate and fallen to the floor while trying to seek
help. When officers arrived, Miles had no pupil response and
required placement of an endotracheal
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tube for breathing. Multiple responders noted a red line
across his neck and bruising on the left side of his jaw and
on the other side of his face. Miles was transported to a
local hospital and then flown to Arkansas Childrens
Hospital.
From
his arrival at the local hospital to the time his death was
declared, Miles remained a three on the Glasgow Coma Scale,
the same as a deceased person. This is because he had no
eye-opening response, no motor function, and no verbal
response. Miless numerous brain injuries included a
subarachnoid hemorrhage, an intraventricular hemorrhage, and
swelling of the brain, which caused the sutures of his skull
to separate. He had diffused retinal hemorrhages in both
eyes, and one of the exams found a macular fold in the left
eye. The autopsy showed that the ligature mark across the
neck was a "deep-seated contusion" and that Miles
had a bruise on the back of his neck.
Dulle
was charged with capital murder and convicted of
second-degree murder. At trial, Dulle moved for a directed
verdict on the charge of capital murder as well as the
lesser-included offenses of murder in the first degree,
murder in the second degree, manslaughter, and negligent
homicide. The circuit court denied the motion as to each
offense. Dulle renewed his motion at the conclusion of all
the evidence; it was again denied. After being convicted of
second-degree murder, Dulle again challenged the sufficiency
of the evidence in a ...