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Webb v. State

Court of Appeals of Arkansas, Division II

October 2, 2019

JAMES W. WEBB APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT [NO. 02CR-18-116] HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE.

          Potts Law Office, by: Gary W. Potts, for appellant.

          Leslie Rutledge, Att'y Gen., by: Rachel Kemp, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, Judge.

         James 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.

         Webb 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.

         On the night of Dennis' death, Webb and Leon "Shane" Thomas were driving in Webb's truck when they saw Mark[1] 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.

         After 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. 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 evidence. Id.

         Webb 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 death.

         We 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 ...


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