APPEAL
FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-17-365] HONORABLE BARRY SIMS, JUDGE
Ronald
L. Davis, Jr., Law Firm, PLLC, by: Ronald L. Davis, Jr., for
appellant.
Leslie
Rutledge, Att'y Gen., by: Pamela Rumpz, Senior Ass't
Att'y Gen., for appellee.
RITA
W. GRUBER, Chief Judge
A
Pulaski County Circuit Court jury convicted the appellant,
Gary Holmes, of first-degree murder and terroristic act. It
also found him guilty of employing a firearm as a means of
committing both offenses. He was sentenced to forty-five
years' imprisonment for first-degree murder with an
additional three years' enhancement for use of a firearm
to be served consecutively, and he was sentenced to five
years' imprisonment for terroristic act with an
additional two years' enhancement to be served
concurrently. The sentences for each offense were to run
concurrently. On appeal, Holmes argues that the circuit court
erred in denying his motions for directed verdict. We affirm.
In the
early evening hours of December 17, 2016, three-year-old AK
and his little brother were back-seat passengers in a car
driven by their grandmother, Kim King-Macon. King-Macon was
traveling to J.C. Penney to meet her son's girlfriend. It
was dark, cold, and raining extremely hard. When King-Macon
was stopped at a stop sign on Warren Drive waiting to turn
onto Mabelvale Cutoff, a black Impala stopped behind her and
blew its horn. King-Macon blew her horn in return, and she
then saw someone exit the Impala with a gun and heard a
gunshot. At that time, King-Macon did not believe the person
had shot into the car. The children appeared to be fine, and
she proceeded to J.C. Penney. When she reached the store and
attempted to get AK out of the car, there was blood coming
out of his mouth and he was lifeless. He died that evening as
a result of a gunshot; the bullet had obliterated his spine,
struck his lung and superior vena cava, and caused massive
bleeding before it exited his chest. Holmes gave a statement
to police on December 23, 2016, claiming that the gun
"just went off" when he jumped out of the car.
The
jury convicted Holmes of first-degree murder and terroristic
act. It also found him guilty of using a firearm during the
commission of both offenses. On appeal, Holmes contends that
the circuit court erred in denying his motions for directed
verdict. First, he argues that the evidence did not
demonstrate that he shot with the purpose to cause damage to
persons or property as required of a terroristic act. Second,
he contends that even if the directed-verdict motion for
terroristic act was properly denied, the evidence of
first-degree felony murder is insufficient because it did not
demonstrate that he "caused the death of AK to further
the commission of the terroristic act."
In
reviewing a challenge to the sufficiency of the evidence, we
determine whether the verdict is supported by substantial
evidence. Howard v. State, 2016 Ark. 434, 506 S.W.3d
843. Substantial evidence is evidence that 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. Id. In reviewing a
sufficiency challenge, we view the evidence in the light most
favorable to the State, considering only evidence that
supports the verdict. Id.
On
appeal, Holmes challenges the sufficiency of the evidence as
to terroristic act by stating that the evidence is in
dispute. Holmes points to his contention that the "gun
just went off"; that King-Macon could not identify the
shooter or state that she ever saw the gun pointed at her
car; and that King-Macon proceeded to J.C. Penney without
calling police or realizing that her vehicle had been shot.
He argues that there "was not evidence that it was [his]
intent to cause damage to property when he accidentally shot
in the vicinity of the vehicle that AK was a passenger
[in]." The State responds that Holmes conceded at trial
that the evidence supported the terroristic-act charge and
that he must now be bound by this concession. We agree.
In
making his motion for directed verdict, Holmes's counsel
argued, "I can't in good conscience argue to this
court that the death of this young child was not caused
during the course of the alleged terroristic act. I won't
do that. . . . In the light most favorable to the State, we
could concede that that argument would sustain the directed
verdict aspect of this case with regards to terroristic
act." Here, Holmes's counsel conceded that the
evidence was sufficient to withstand a motion for directed
verdict as to the terroristic act. Generally, an
attorney's statement is not evidence; however,
concessions made by an attorney can bind his or her client.
Hakim v. State, 2018 Ark.App. 579, at 3 (citing
Warren v. Frizell, 2017 Ark.App. 129, 516 S.W.3d
756); see also Dupwe v. Wallace, 355 Ark. 521, 530,
140 S.W.3d 464, 470 (2004) ("In Benton v.
State, 78 Ark. 284, 94 S.W. 688 (1906), this court
stated that '[a] party cannot, even in a criminal case,
take inconsistent positions and play fast and loose with the
court.' Benton, 78 Ark. at [293], 94 S.W. at
691.")
Even if
we were to reach the sufficiency argument, it has no merit.
The offense of terroristic act requires the State to prove
that Holmes shot at a conveyance which was being operated or
which is occupied by another person with the purpose to cause
injury to another person or damage to property. Ark. Code
Ann. § 5-13-310(a)(1) (Repl. 2013). Holmes argues that
the evidence is insufficient that he shot at the vehicle with
the intent to cause damage to property or persons. He claims
that the only evidence of his intent was the statement he
gave to police that the gun accidentally went off. The trier
of fact, however, is not required to believe the testimony of
any witness. This is especially true when the witness is the
accused. Furr v. State, 308 Ark. 41, 44, 822 S.W.2d
380, 381 (1992) (citing Harris v. State, 294 Ark.
484, 743 S.W.2d 822 (1988)).
At
trial, King-Macon testified that on the evening of December
17, she was driving on Warren Drive toward Mabelvale Cutoff,
and noticed a black Impala with its lights on sitting to her
right side on Warren Drive. When she got to the stop sign at
Mabelvale Cutoff, she heard someone pressing continuously on
a horn behind her. She honked her horn in return, saw someone
exit the vehicle holding a gun, and heard a gunshot. King-
Macon testified that she saw in her rearview mirror that the
gun was pointed in the air, which was why she did not think
her car had been shot and that the person was trying to scare
her. She explained that it was raining hard, and she did not
hear a bullet enter her car; when she looked back at her
grandchildren, she did not see anything wrong with them.
Michelle
Poole, Holmes's childhood friend whom she had known for
twenty-five years, testified that she was with Holmes on the
day he fired a gun at Mabelvale Cutoff and Warren Drive. She
and Holmes had driven around in her black Impala most of the
day. Poole testified that they had picked up Holmes's
"play" brother, Fabian, who had just been in a
verbal altercation outside the house where they picked him
up. When he got into the Impala, Fabian had a gun, which
Holmes at some point took from him. Poole testified that the
gun was sitting in Holmes's lap as he drove and that
Holmes was "riled up" from the altercation. She
stated Holmes gets paranoid and thought people were following
him as they drove around. Poole recalled Holmes indicating
that a car was following him on Warren Drive, so he pulled
off to the right and allowed the car to pass. The car
proceeded to the stop sign as did Holmes. Poole said that the
car stayed at the stop sign for a few minutes and Holmes
"laid on the horn" and "jumped out and shot at
the car," further explaining that the gun was pointed at
the car.
Variances
and discrepancies in the proof go to the weight or
credibility of the evidence and are therefore matters for the
fact-finder to resolve. Starling v. State, 2016 Ark.
20, at 5, 480 S.W.3d 158, 161. The trier of fact is free to
believe all or part of any witness's testimony and may
resolve questions of conflicting testimony and inconsistent
evidence. Id. Accordingly, when there is evidence of
a defendant's guilt, even if it is conflicting, it is for
the jury as fact-finder to resolve any conflicts and
inconsistencies; it is not for the court to resolve on a
directed-verdict motion. Id. Had a directed-verdict
motion been properly made to preserve the ...