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