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Dulle v. State

Court of Appeals of Arkansas, Division II

September 18, 2019



          Teri L. Chambers, Arkansas Public Defender Commission, for appellant.

          Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for appellee.


         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 Children's Hospital in Little Rock where he died from his injuries the following day. At 4:50 a.m. on February 20, Miles's 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 child's 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 Miles's 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 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 Children's 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. Miles's 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 posttrial motion to set aside the verdict. It was deemed denied by the circuit court's inaction. This timely appeal is now properly before our court.

         Our standard of review for a sufficiency challenge is well settled. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Price v. State, 2010 Ark.App. 111, at 8, 377 S.W.3d 324, 330. 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. Id., 377 S.W.3d at 330–31. We affirm a conviction if substantial evidence exists to support it. Id., 377 S.W.3d at 331.

         The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Snow v. State, 2018 Ark.App. 612, at 5, 568 S.W.3d 290, 293. 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. Price, supra. Circumstantial evidence may constitute substantial evidence to support a conviction only if it excludes every other reasonable hypothesis other than the guilt of the accused, and the jury is charged with making this determination. Snow, supra.

         The weight of the evidence and the credibility of the witnesses are matters for the fact-finder, not for this court on appeal. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005). The jury may believe all or part of any witness's testimony and is responsible for resolving questions of conflicting testimony and inconsistent evidence. Satterfield v. State, 2014 Ark.App. 633, 448 S.W.3d 211. This is true even of opinion testimony offered by experts. E.g., Marcyniuk v. State, 2010 Ark. 257, at 8, 373 S.W.3d 243, 250. A person's intent or state of mind is rarely capable of proof by direct evidence and most often is inferred from the circumstances of the crime. E.g., Steggall v. State, 340 Ark. 184, 190, 8 S.W.3d 538, ...

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