Evans v. State, 2004 Ark. App. LEXIS 951 (AR Ct. App. 2004)

STEVEN EVANS, APPELLANT v. STATE OF ARKANSAS, APPELLEE

CACR03-1145

COURT OF APPEALS OF ARKANSAS, DIVISION FOUR

2004 Ark. App. LEXIS 951

December 15, 2004, Decided

JUDGES: OLLY NEAL, Judge. BIRD and GRIFFEN, JJ., agree.

OPINION BY: OLLY NEAL

A Jefferson County jury convicted appellant Steven Evans of second-degree murder, carrying a weapon, and failure to appear. Appellant received eighteen years’ imprisonment and a $1,000 fine. For reversal, appellant argues that the evidence was insufficient to support his convictions for second-degree murder and carrying a weapon. He also argues that the State failed to present sufficient evidence to negate his self-defense justification and that the trial court erred in denying his motion for a new trial. We affirm.

A person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-103 (a)(1) (Repl. 1997). At the close of the State’s case and again at the close of the evidence, appellant moved for a directed verdict, arguing that there was insufficient evidence to prove that appellant killed Glenn Marks, Jr., under circumstances manifesting extreme indifference to the value of human life. He also argued that he had availed himself of the defense of justification and that the State had not presented sufficient evidence to negate that defense. The trial court denied both motions.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Burley v. State, 348 Ark. 422, 73 S.W.3d 600 (2002). The test for determining the sufficiency of the evidence is 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. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State. Id. Only evidence supporting the verdict will be considered. Id. The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Harper v. State, ___ Ark. ___, ___ S.W.3d ___, 2004 Ark. LEXIS 555 (Oct. 7, 2004). The facts are as follows. On her way home, on February 16, 2002, nurse Stacy Broach noticed a man lying in the middle of South Evans Road in Pine Bluff, Arkansas. She got out of her vehicle, checked the man’s pulse and determined that the man was dead, and called for help. She identified victim Marks as the man she found.

Appellant went to the hospital where he was met by Officer Charles Inman. Inman testified that appellant arrived at the hospital bloody and informed him that someone had tried to rob him and that he stabbed the person in the chest and stomach. The police were alerted. Jefferson County Sheriff Investigator John McNeill went to the hospital to speak with appellant. At the hospital, appellant was Mirandized, and he made a statement in which he admitted to stabbing Marks.

Appellant testified on his own behalf. He testified that he and Marks were friends and that, on the day of the accident, he, Marks, and others drove to Louisiana to sell Evans’s rims. Evans sold the rims and they returned to Pine Bluff. After taking the other people home, appellant testified that he then took Marks to a shop. When he pulled into the front of the shop, appellant testified that Marks “banged the dash” and told appellant, “you need to drop the issue,” meaning to give Marks the money. Appellant testified that he thought Marks was joking, but knew he was not when Marks raised his voice.

Appellant testified that he then put his truck in reverse and left because he felt safer away from the shop. Appellant testified that they drove away from the shop onto Franklin Street and followed the curve up to a four-way stop by a gas station. They then turned left onto Princeton Pike, driving right past State Police Headquarters. Appellant testified, however, that when he passed the State Police Headquarters, he was traveling at speeds of eighty to eighty-five miles per hour, and that after he passed it he realized that “I could have pulled in there.” Appellant stated that, as he was driving, Marks kept telling him to stop the truck and to “just go ahead and make it easy on yourself . . . [and] just break the money off.” Appellant then testified:

When we got to the four-way stop he said, “It all stops here” so I didn’t make a complete stop and he still hadn’t tried to grab the wheel. I kept trying to talk to him, saying that he didn’t have to do this. Mr. Marks didn’t tell me why he wanted my money, only that he wanted it and that he wasn’t going to take no for an answer.

Appellant testified that as he turned onto Evans Road, Marks “tried to jam the gear shift into park, trying to kill the vehicle.” Appellant stated that he then stopped and put the vehicle into park. He further testified:

Then Mr. Marks reached over and started patting me down. He started patting down at my sock where I first put the money when we were in Louisiana, everyone saw me put it there so I guess he thought that is where I put it . . . . Mr. Marks was becoming very agitated and grabbed at my shirt. He was agitated because he didn’t find the money. . . . Then I told him I would get the money. I was fidgeting with the lock on the [car] console, because sometimes it sticks, but I thought he might not see me doing it. I remembered that I had left a knife in the console, and I was trying to get to it. I thought if I had the knife it would give me the upper hand because otherwise I wouldn’t be able to defend myself. I figured if I had the knife he would get out of the truck, that he would run away if I had a knife.

Appellant explained that he had the knife in his car for splicing speaker wires. He stated that Marks saw him reach for the knife and grabbed it. Appellant testified that he jumped out of the truck and fell, after which he and Marks started fighting. He testified that Marks had the knife in his hand, but dropped it. Appellant took the knife and stabbed Marks. Appellant testified that, when he then tried to run back to his truck, Marks grabbed his arm. Appellant stabbed Marks in the chest. He testified that Marks stated, “Why did you stab me white boy?” Marks’s eyes rolled back, and he fell straight back on the pavement. Appellant then left the scene.

Our supreme court has held that the phrase “under circumstances manifesting extreme indifference to the value of human life” is part of the proof of the actor’s mental state. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). The phrase indicates that the attendant circumstances themselves must be such as to demonstrate the culpable mental state of the accused. Id. Extreme indifference is thus “in the nature of a culpable mental state . . . and therefore is akin to ‘intent.'” Id. at 922, 69 S.W.3d at 435-36. Offenses requiring extreme indifference involve actions that “evidence a mental state on the part of the accused to engage in some life-threatening activity against the victim.” Id. at 922-23, 69 S.W.3d at 436. Proof that the accused acted with deliberate conduct that culminates in the death of a person satisfies the “under circumstances manifesting extreme indifference to the value of human life” requirement. See Hardman v. State, 356 Ark. 7, 356 Ark. 7, 144 S.W.3d 744 (2004). Viewing only the evidence supporting the verdict in the light most favorable to the State, substantial evidence supports the conviction. The evidence reveals that appellant acted with deliberate conduct, which culminated in the death of Glenn Marks, Jr., thereby satisfying the “under circumstances manifesting extreme indifference to the value of human life” requirement. Therefore, we affirm.
With regard to appellant’s argument that the State failed to negate his justification argument, we affirm. A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is (1) committing or about to commit a felony involving force or violence or (2) using or about to use unlawful deadly physical force. Ark. Code Ann. § 5-2-607(a) (1) (2) (Repl. 1997).

The only evidence of justification that we have is from appellant, and the jury is not required to believe any witness’s testimony, especially the testimony of the accused since he is the person most interested in the outcome of the trial. Winbush v. State, 82 Ark. App. 365, 107 S.W.3d 882 (2003). Additionally, Deputy Sheriff Larry Gragg testified that appellant accompanied them back to the scene where police searched the area for an hour or two trying to locate the knife. Gragg testified that “after awhile, it was determined that the knife was either not there or would not be found.” Thereafter, police learned that appellant did not throw the knife out in the ditch, but rather had taken the knife home and given it to his father, who hid the knife behind his home. Attempts to conceal the crime can be considered as evidence of consciousness of guilt. Coggin v. State, 356 Ark. 424, 156 S.W.3d 712, 2004 Ark. LEXIS 169 (Mar. 25, 2004). A jury may properly consider an attempt to cover up one’s connection to a crime as proof of a purposeful mental state. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). Furthermore, forensic pathologist Dr. Stephen Erickson testified that he located sharp force injuries on Marks’s body, which included a small puncture wound on the hand, a small puncture wound on the knuckle of the right ring finger, and stab wounds to the back, left flank, and left front chest. Dr. Erickson further testified that the fatal wound was the wound to the chest because it was a half-inch, deep wound to the aorta. Intent may be inferred from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds. Coggin v. State, supra. Accordingly, we affirm this point.

Appellant also argues that the evidence was insufficient to support his conviction for carrying a weapon. The State correctly opines that this argument is not preserved for appellate review. Although appellant made a directed verdict motion on this basis at the close of the State’s case, he failed to renew this argument at the close of the evidence. Failure to challenge the sufficiency of the evidence at both the close of the State’s case and the close of all of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence on appeal. Romes v. State, 356 Ark. 26, 356 Ark. 26, 144 S.W.3d 750 (2004).

Although appellant responds that he preserved the issue, he is mistaken. At the close of the State’s case, appellant made directed-verdict motions for second-degree murder, stating:

We also need to address the same issue as to the charge of carrying a weapon. The State must show that he had this knife in his possession or readily available for use with the purpose to employ it as a weapon against a person. The State has not shown that his purpose in having the knife was to employ it as a weapon.

At the close of the evidence, the appellant renewed his motion, arguing:

Your Honor, the Defense renews its Motion for Directed Verdict challenging the sufficiency of the evidence. There hasn’t been any additional evidence presented from what we saw or heard from when the State rested that shows that Mr. Evans acted knowingly and that he knew his conduct would cause the result. And the State does not have to just show knowingly, it must be knowingly and under circumstances evidencing extreme indifference to the value of human life.

This was specifically addressed by the Court yesterday and the Court inquired about case law.

Extreme indifference to the value of human life is difficult to define. According to the research I did, it is difficult to find anything that said exactly what it is. The examples I [found involved] shooting into a crowd of people. One case involved aggravated assault and the one other case involved a murder case, but those are the examples I was able to find extreme indifference to the value of human life where a defendant shot into a crowd of people knowing that his conduct would result in a death or an aggravated assault.

The State has not been able to show the additional requirement of extreme indifference to the value of human life. They have shown a stabbing. That goes to knowingly and it goes to intent, but they haven’t shown the additional requirement of the circumstances.

Following the State’s rebuttal, appellant stated, “We renew our Motion for Directed Verdict, your Honor.” Because appellant failed to renew his motion for carrying a weapon, we do not address this issue on appeal.

Appellant’s final argument is that the trial court erred in denying his motion for a new trial after they learned that a juror had failed to disclose during voir dire a “contentious relationship” the juror had with appellant’s father. The State correctly argues that we are without jurisdiction to hear this issue.

On May 5, 2003, judgment was entered reflecting that appellant had been found guilty by a jury of murder in the second degree and sentenced to 180 months’ imprisonment. Counsel for appellant filed a timely motion for new trial, which was denied on May 23, 2003. On June 6, 2003, the trial court entered an amended order denying appellant’s motion for a new trial; the court also entered an order relieving appellant’s attorney. On July 3, 2003, appellant filed an untimely pro se notice of appeal from “the entry of the judgment and commitment order on May 5, 2003.” The supreme court subsequently granted him permission to file a belated appeal. See Evans v. State, 356 Ark. 366, 151 S.W.3d 314, 2004 Ark. LEXIS 144 (Mar. 4, 2004). Appellant’s appeal is limited to the May 5, 2003, judgment because he did not appeal from the denial of his motion for new trial.

Affirmed.
BIRD and GRIFFEN, JJ., agree.