James W. WEBB, Appellant
STATE of Arkansas, Appellee
[Copyrighted Material Omitted]
FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-18-116],
HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE
Law Office, by: Gary W. Potts, Monticello, for appellant.
Rutledge, Atty Gen., by: Rachel Kemp, Asst Atty Gen., for
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 Denniss 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 Webbs truck when they saw
Mark 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 river.
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 appeals.
Although 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. SeeTubbs 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 ...