FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-17-365], HONORABLE BARRY SIMS, JUDGE
L. Davis, Jr., Law Firm, PLLC, Little Rock, by: Ronald L.
Davis, Jr., for appellant.
Rutledge, Atty Gen., by: Pamela Rumpz, Senior Asst Atty
Gen., for appellee.
GRUBER, Chief Judge
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.
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 sons 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.
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."
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.
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.
making his motion for directed verdict, Holmess counsel
argued, "I cant 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 wont 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,
Holmess counsel conceded that the evidence was sufficient to
withstand a motion for directed verdict as to the terroristic
act. Generally, an attorneys 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,
2018 WL 6187563 (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 , 94
S.W. at 691.")
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)).
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, Holmess 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 Holmess
"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 Holmess 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
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 witnesss testimony and may
resolve questions of conflicting testimony and inconsistent
evidence. Id. Accordingly, when there is evidence of
a defendants 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 ...