Galvin v. State

Robert Earl GALVIN v. STATE of Arkansas

CR 95-753                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 16, 1996


1.   Motions -- denial of motion for directed verdict -- factors on
     review. -- A motion for a directed verdict is a challenge to
     the sufficiency of the evidence; when reviewing the
     sufficiency of the evidence on appeal, the court does not
     weigh the evidence but simply determines whether the evidence
     in support of the verdict is substantial; substantial evidence
     is that which is forceful enough to compel reasonable minds to
     reach a conclusion one way or another; in determining whether
     there is substantial evidence, the evidence is reviewed in the
     light most favorable to the State, and it is permissible to
     consider only that evidence which supports the guilty verdict. 
     
2.   Witnesses -- determination of credibility left to the trier of
     fact -- uncorroborated testimony of one State's witness is
     sufficient to sustain a conviction. -- The determination on
     matters of credibility of the witnesses and conflicting
     testimony is left to the trier of fact; further, the
     uncorroborated testimony of one State's witness is sufficient
     to sustain a conviction.  

3.   Evidence -- much of witness's testimony could be reconciled
     with the physical evidence -- evidence reviewed in the light
     most favorable to the State. -- The appellant's assertion that
     the witness's testimony conflicted with the physical evidence
     was without merit; the court did not need to examine these
     conflicts because the evidence is reviewed in the light most
     favorable to the State, and it is permissible to consider only
     that evidence which supports the guilty verdict; nevertheless,
     much of the testimony could be reconciled with the physical
     evidence. 

4.   Witnesses -- appellant's credibility argument meritless --
     jury, not appellate court, determines credibility. -- Where
     the appellant's arguments called for a credibility
     determination, the court did not reach them; credibility is
     for a jury, not an appellate court, to determine. 


     Appeal from Pulaski Circuit Court; John W. Langston, Judge;
affirmed.
     Arkansas Public Defender Comm'n, by:   Richard A. Hutto, for
appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y Gen.
and Robin Carroll, Law Student Admitted to Practice Pursuant to
Rule XV(E)(1) of the Rules Governing Admission to the Arkansas
Supreme Court, for appellee.

     Andree Layton Roaf, Justice.
January 16, 1996.









ROBERT EARL GALVIN,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE,






CR95-753


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CR94-789,
HON. JOHN W. LANGSTON, JUDGE,




AFFIRMED.




                   Justice Andree Layton Roaf
     Appellant Robert Earl Galvin was convicted of first-degree
murder and sentenced to thirty-six years imprisonment.  For his
sole point on appeal, Galvin contends that the trial court erred in
denying his motion for a directed verdict.  We affirm.
     At appellant's trial an officer with the Little Rock Police
Department testified that he received a call at 2:31 a.m. on
December 19, 1993, and, after arriving at the intersection of
Twenty-fifth and Maple, discovered the body of the victim, Joey
Madaris, lying in a grassy area next to a fence near the corner. 
In addition, an expended cartridge was found in the intersection
itself.  A crime specialist testified that the expended cartridge
was found approximately forty feet from the victim and that such a
cartridge would not have been ejected more than six or seven feet
from where the weapon was fired.  He further testified that it was
impossible to determine whether the cartridge was involved in this
incident.  An associate medical examiner with the Arkansas State
Crime Laboratory testified that the victim had two gunshot wounds. 
The fatal shot entered the right side of the victim's back, and a
second shot entered the sole of the victim's right foot.
     Derrick Johnson, age seventeen, testified that he knew the
victim, Joey Madaris, and that he saw the victim on the morning of
December 19, 1993.  Johnson stated that he also saw Robert Galvin,
age sixteen, John Holmes, and Derrick Galvin standing in a yard by
John Holmes' house which was next to the house with the fence where
the victim was found.  Derrick Johnson was standing across the
street near an elementary school on Maple Street.  Johnson
testified that it appeared Madaris was exchanging words with the
Galvins and Holmes.  When Madaris attempted to walk away, Derrick
Galvin and Holmes grabbed him, Robert Galvin pulled up his shirt,
pulled out a gun, and started shooting.  Johnson testified that he
heard two shots and started running; the last place he saw Madaris
was near the corner of the fence.  Johnson stated that he knew
appellant Robert Galvin before the incident and identified the
appellant in court.  Although Johnson could not say that he
actually saw Madaris get shot, he testified that he saw Galvin
shoot the gun at Madaris from close range and heard two shots
before he ran away.
     The appellant argues that the trial court erred in denying his
motions for directed verdict because there was no substantial
evidence upon which reasonable jurors could find appellant
committed the homicide.  A motion for a directed verdict is a
challenge to the sufficiency of the evidence.  Young v. State, 321
Ark. 541, 906 Ark. 280 (1995).  When reviewing the sufficiency of
the evidence on appeal, we do not weigh the evidence but simply
determine whether the evidence in support of the verdict is
substantial.  Id.  Substantial evidence is that which is forceful
enough to compel reasonable minds to reach a conclusion one way or
another.  Id.  In determining whether there is substantial
evidence, we review the evidence in the light most favorable to the
State, and it is permissible to consider only that evidence which
supports the guilty verdict.  Id.
     At the close of the State's case, the appellant moved for a
directed verdict on the basis that reasonable jurors could not find
Derrick Johnson credible.  The appellant further asserted Johnson's
testimony was directly contradicted by the State's evidence
regarding where the victim was found and where other evidence was
found.  The appellant again moved for a directed verdict at the
close of all the evidence on the basis that reasonable jurors could
not find Johnson's testimony credible based upon "all the
contradictions of the other testimony."
     On appeal, the appellant asserts that the only evidence which
had any tendency to link him with the crime was the testimony of
Derrick Johnson.  The appellant again submits that such evidence
was not credible and was not substantial.  However, on matters of
credibility of the witnesses and conflicting testimony, we have
repeatedly held that the determination of those issues is left to
the trier of fact.  Wilson v. State, 320 Ark. 707, 898 S.W.2d 469
(1995).  Further, the uncorroborated testimony of one State's
witness is sufficient to sustain a conviction.  Tisdale v. State,
311 Ark. 220, 843 S.W.2d 803 (1992).
     The appellant points out certain discrepancies in the
statements Johnson gave to police and his testimony at trial.  At
trial, Johnson admitted that in his original statement to the
police on the morning of December 19, 1993, the day of the
shooting, he said that he did not know anything because he did not
want to get involved.  He testified that he gave the police a
second statement on February 9, 1994, in which he told the truth. 
In his second statement, Johnson told the police he went to a
friend's home and had her dial "911," and he then reported the
shooting.  At trial, Johnson testified that he dialed "911."   The
friend testified by way of a transcript from a prior proceeding
that Johnson had not come to her house on the night Madaris was
shot.  She admitted that she told an officer that Johnson called
"911" from her home but claimed that Johnson had called and asked
her to do so, and she thought it was a prank.  Johnson also
admitted that he had pled guilty to two counts of delivery of
cocaine and made an agreement with the State that in exchange for
his truthful testimony in the instant case his punishment on the
delivery of cocaine offenses would be reduced to five years
probation, 120 days in the county jail, and a $500 fine.
     The appellant also asserts that Johnson's testimony conflicts
with the physical evidence.  We need not examine these conflicts
because we review the evidence in the light most favorable to the
State, and it is permissible to consider only that evidence which
supports the guilty verdict.  Nevertheless, much of the testimony
can be reconciled with the physical evidence.  Johnson testified
that he saw Galvin shoot the gun from close range.  The appellant
submits this conflicts with the testimony of the criminalist with
the Arkansas State Crime Laboratory.  However, the criminalist
testified that her conclusion that the shots were fired at a
"distant range" was simply based upon the fact that no smoke
residues or gunpowder flakes were discovered, and she stated that
"distant range" meant nothing in terms of feet and inches.  The
appellant also points out that Johnson last saw the victim at the
corner of the fence, and the victim was in fact discovered
approximately fifteen feet away.  Finally, the appellant finds it
significant that an expended cartridge was found in the
intersection some forty feet away; however, the crime specialist
testified it was impossible to determine whether the cartridge was
involved with this incident.
     In sum, this case involves a credibility determination and
while Johnson may not have an exemplary background, credibility is
for a jury, not an appellate court, to determine.  Larimore v.
State, 317 Ark. 111, 877 S.W.2d 570 (1994); Moore v. State, 315
Ark. 131, 864 S.W.2d 863 (1993).
     Affirmed.