JAMES W. WEBB APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-18-116]
HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE.
Law Office, by: Gary W. Potts, for appellant.
Rutledge, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge.
Webb was convicted by an Ashley County jury of one count of
second-degree unlawful discharge of a firearm from a vehicle
and one count of tampering with physical evidence. He appeals
his convictions, alleging that the trial court erred in
failing to instruct the jury on negligent homicide and
asserting that there was insufficient evidence to support his
evidence-tampering conviction. We affirm.
was charged with first-degree unlawful discharge of a firearm
from a vehicle and evidence tampering relating to the death
of Dennis Smith. Dennis died on July 8, 2018, from a gunshot
wound. Webb admits that his weapon-a pistol-caused
Dennis's death, and he also admits that he threw the
pistol into the Ouachita River after the shooting. With this
background information, we will now consider the evidence
presented to the jury.
night of Dennis' death, Webb and Leon "Shane"
Thomas were driving in Webb's truck when they saw
and Dennis Smith standing at the end of the road. Shane asked
Webb to stop so he could talk to Mark. Shane walked over to
the Smith brothers and started talking with them. Webb
remained in the truck. What happened next is in dispute. Both
Mark and Shane testified that Webb pointed his pistol at the
Smith brothers and fired a shot that killed Dennis. Webb
testified that Shane asked him about the pistol and was
holding the pistol. He further testified that in the process
of retrieving the pistol from Shane the gun discharged, and
unfortunately, the bullet accidentally struck and killed
Dennis. Webb then left the scene and threw the gun in the
hearing this evidence, the jury was instructed on the
offenses of evidence tampering and first-degree unlawful
discharge of a firearm from a vehicle, as well as the
lesser-included offense of unlawful discharge of a firearm in
the second degree. Webb requested an instruction on negligent
homicide, claiming that it is a lesser-included offense of
the unlawful-discharge-of-a-firearm offense, but the trial
court disagreed and refused to submit the instruction to the
jury. Webb also moved for a directed verdict at trial,
arguing in part that the State had failed to prove the
concealment of the firearm with the purpose of impairing its
availability in the official proceeding or investigation of a
felony. The trial court denied his directed-verdict motions,
and the jury returned a verdict convicting him of the
lesser-included offense of second-degree unlawful discharge
of a firearm and tampering of physical evidence. He now
Webb addresses the sufficiency issue last, we must address it
first because of double-jeopardy concerns. Gillean v.
State, 2015 Ark.App. 698, 478 S.W.3d 255. This court
treats a motion for directed verdict as a challenge to the
sufficiency of the evidence. See Tubbs v. State, 370
Ark. 47, 257 S.W.3d 47 (2007). In reviewing a challenge to
the sufficiency of the evidence, we determine whether the
verdict is supported by substantial evidence, direct or
circumstantial. Id. Substantial evidence is evidence
forceful enough to compel a conclusion one way or the other
beyond suspicion or conjecture. Id. This court views
the evidence in the light most favorable to the verdict, and
only evidence supporting the verdict will be considered.
Id. We do not determine the credibility of
witnesses, as this is an issue for the jury and not the
court. Morgan v. State, 2009 Ark. 257, 308 S.W.3d
147. Here, the jury, as the trier of fact, was free to
believe all or part of any witness's testimony and
resolve questions of conflicting testimony and inconsistent
argues on appeal that the trial court erred in denying his
motion for directed verdict on the
tampering-with-physical-evidence charge. To commit the
offense of tampering with physical evidence, Webb had to
alter, destroy, suppress, remove, or conceal any record,
document, or thing with the purpose of impairing its verity,
legibility, or availability in any official proceeding or
investigation. Ark. Code Ann. § 5-53-111 (Repl. 2016).
Webb admits that he was holding the gun when it discharged
and killed Dennis and further admits that he threw the gun
into the river. He claims he did so because he was remorseful
and did not want a weapon that had been used to killed
someone. He argues that the State provided no evidence that
he disposed of the weapon to impair or impede the
investigation of the shooting and Dennis's resulting
cannot reach the merits of Webb's argument because his
motion for directed verdict at trial was too generic. In
order to preserve his sufficiency argument on appeal, Webb
was required to make a specific motion for directed verdict
at the close of the State's evidence and at the close of
all the evidence. E.g., Maxwell v. State,
373 Ark. 553, 558, 285 S.W.3d 195, 199 (2008). Rule 33.1(c)
of the Arkansas Rules of Criminal Procedure states in
relevant part the degree of specificity required:
A motion for directed verdict . . . based on insufficiency of
the evidence must specify the respect in which the evidence
is deficient. A motion merely stating that the evidence is
insufficient does not preserve for appeal issues relating to
a specific deficiency such as insufficient proof on the
elements of the offense.
Ark. R. Crim. P. 33.1(c) (2018). "The rationale behind
this rule is that 'when specific grounds are stated and
the absent proof is pinpointed, the circuit court can either
grant the motion, or, if justice requires, allow the State to
reopen its case and supply the missing proof.'"
Maxwell, 373 Ark. at 559, 285 S.W.3d at 200 ...