Meeks v. State

Kelvin MEEKS v. STATE of Arkansas

CA CR 95-962                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
               Opinion delivered December 11, 1996


1.   Criminal law -- first-degree battery -- satisfaction of
     culpability requirement. -- Although the culpable mental state
     necessary to warrant a conviction of first-degree battery
     under Ark. Code Ann.  5-13-201 is not specified in the
     statute, under the statutory definition of battery in the
     first degree, the culpability requirement may be satisfied by
     showing that the defendant acted either purposefully or
     knowingly with regard to the attendant circumstances; the
     severity of the punishment authorized is warranted by the
     conjunction of severe injury and a wanton or purposeful mental
     state.

2.   Motions -- directed verdict -- defendant bears burden of
     obtaining ruling on both motions -- sufficiency issue not
     preserved for appeal. -- Although appellant made a motion for
     directed verdict based on the precise ground that he raised on
     appeal at the close of the Stateþs case and apparently renewed
     his motion at the conclusion of all the evidence, nothing
     appeared in the record from which the appellate court could
     find that the trial court considered or ruled on appellant's
     second motion; the Arkansas appellate courts have
     traditionally followed the requirement found in A.R.Cr.P. Rule
     36.21(b) that both motions be made and have placed the burden
     of obtaining a ruling on both motions upon the defendant;
     objections and questions left unresolved are waived and may
     not be relied upon at or for appeal; although appellant
     tendered a supplement to the record containing proof positive
     that his second motion was made, he failed to include language
     indicating the courtþs ruling on the motion; the appellate
     court held that because of that deficiency, appellant did not
     preserve the sufficiency issue for appeal.

3.   Appeal & error -- unsupported argument will not be considered
     on appeal. -- It is fundamental that, absent citation of
     authority or convincing argument, the appellate court will not
     consider an argument on appeal unless it is apparent without
     further research that it is well-taken.

     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     Gregory E. Bryant, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Sr. Appellate Advocate, for appellee.
     Olly Neal, Judge.
     Appellant, Kelvin Meeks, was convicted on May 11, 1995, of the
offenses of negligent homicide and first-degree battery, and
acquitted of carrying a weapon after a jury trial in the Pulaski
County Circuit Court.  On appeal, Meeks seeks only the reversal of
the battery conviction, contending first that the Stateþs evidence
was insufficient to sustain the conviction, and secondly that
certain inconsistencies in the juryþs verdict require either
dismissal of the battery charge or reversal of the conviction.
Neither point of error warrants reversal or dismissal, and 
therefore we affirm the conviction.
     The evidence presented at trial established that on December
28, 1993, appellant was involved in an altercation at the Pay More
Pawnshop in southwest Little Rock, which resulted in the death of
Cedric Brown and the serious injury of a three-year-old bystander.
Terrence Williams, a friend of Cedric Brownþs, testified that on
the day of the shootings, he, Brown, and another man named Courtney
Brooks were across the street from the Pay More Pawnshop when Brown
spotted appellantþs car and informed his companions, þ[T]hatþs the
guy that robbed me last night.þ  According to Mr. Williams, Brown
did not actually know appellant and þhad him mixed up with somebody
else.þ  Williams stated that Brown drove his automobile, a 1977
Oldsmobile to the pawnshop and parked about eight (8) parking
spaces away from appellantþs car, a 1987 gray Cadillac.  When
appellant exited the store, Brown went to the driverþs side window
of Meeks's car and exchanged words with appellant.  Williams said
he saw Brown reach for his pistol and heard shooting, but did not
actually see gunfire exchanged because he immediately fled the
area.
     In his testimony on behalf of the State, Courtney Brooks
admitted that he was with Williams and Brown when the shootings
occurred.  Brooks corroborated Williamsþs story that he, Brown and
Terrence Williams entered the pawnshop parking lot so that Brown
could confront appellant about a robbery that occurred the previous
night, but claimed that prior to the incident, he did not know
Brown was armed.  Brooks testified that he saw Brown pull a gun out
of his coat, heard shooting, and saw Brown fall to the ground.
Brooks then got into the driverþs seat of Brownþs car and backed
the car out in preparation to leave the store.  Brown then jumped
off the ground, got into the passenger seat, and was driven to a
local hospital for treatment.  Brooks stated that he left Brown at
the St. Vincentþs Infirmary emergency room where Brown underwent
emergency surgery and died a short while after being admitted.
     Police officers who were dispatched to the shooting testified
that upon their arrival at the pawn shop, they first noticed a
Toyota truck with a bullet hole in the back window and that a small
child, later identified as Robin Leath, had been injured.  One
mutilated lead projectile was recovered from the floorboard of the
truck.  None of the suspects or victims were found at the scene.
Officer R.K. Brown testified that as he secured the crime scene, he
found several spent rounds of ammunition and a human thumb that had
been severed by a gunshot.  Steven Zakrzewski, while en route to
the pawnshop was dispatched to a Shell Super Stop gas station down
the street from the shooting, testified that when he arrived at the
gas station, he found appellant lying on the pavement.  Zakrzewski
stated that after appellant was transported by ambulance for
medical treatment, he searched appellantþs car and discovered a
.357 handgun in the glove box and one (1) spent .9 millimeter hull
in the back seat.
     Doug Braswell, owner of Pay More, remembered the shooting
incident and testified that when he first heard gunfire, he was
standing outside the store, þtalking to a couple about a television
they had in the back of their truck.þ  Braswell stated that when he
realized that the men he saw standing by the store were shooting
guns, he retreated inside the store.  Other evidence revealed that
three-year-old Robin Leath was struck at the base of her skull by
a bullet from appellantþs .357 and, after surgery at Arkansas
Childrenþs Hospital, suffers permanent brain damage.  Appellant
testified that he was unaware that anyone other than Brown had been
shot until hearing it on the news while he was hospitalized.
     Appellant first argues that the trial court erred in denying
his motion for directed verdict on the first-degree battery charge,
which amounts to a challenge to the sufficiency of the evidence to
sustain appellantþs conviction on that count.  Specifically,
appellant contends that the State failed to put on proof that he
acted with the requisite culpability for battery first.  That
argument was based on the juryþs finding that the killing of the
primary victim occurred through negligent conduct.  Our first-
degree battery statute, Ark. Code Ann.  5-13-201 provides in
relevant part:
     (a) A person commits battery in the first degree if: 
                 *              *             *
     (3) He causes serious physical injury to another person under
     circumstances manifesting extreme indifference to the value of
     human life . . . 

Although the culpable mental state necessary to warrant a
conviction under this section is not specified in the statute,
under this definition of battery first, the culpability requirement
may be satisfied by showing that the defendant acted either
purposefully or knowingly with regard to the attendant
circumstances. Vowell v. State, 4 Ark. App. 175, 628 S.W.2d 599
(1982).  That interpretation of the statute is based on the
commentary to the battery statute, which relates that the offense
comprehends life-endangering conduct.  The Vowell opinion also
recognizes that the severity of the punishment authorized is
warranted by the conjunction of severe injury and a wanton or
purposeful mental state, and points to the portion of the
commentary that notes that each subsection [of the battery statute]
describes conduct that would produce murder liability if death
resulted. Id. at 187-188. 
     Although appellantþs first argument raises serious and
troubling questions regarding the "knowing or purposeful" element
of our first-degree battery statute, we are unable to address those
issues as they are not properly preserved for appellate review. 
See, e.g. Johnson v. State, 270 Ark. 992, 606 S.W.2d 752 (1980). 
While appellant made a motion for directed verdict based on the
precise ground he raises on appeal at the close of the Stateþs
case, and apparently renewed his motion at the conclusion of all
the evidence, nothing appears in the record from which we could
find that the trial court considered or ruled on appellant's second
motion.  Our appellate courts have traditionally followed the
requirement found in A.R. Cr. Proc. 36.21(b) that both motions be
made, Easter v. State, 306 Ark. 452, 815 S.W.2d 924 (1991), and
have placed the burden of obtaining a ruling on both motions upon
the defendant.  Objections and questions left unresolved are waived
and may not be relied upon at or for appeal.  Danzie v. State, 326
Ark. 34, 930 S.W.2d 310 (1996).  Although it can readily be
inferred from the context of the record that the trial court denied
appellantþs in-chambers motion for directed verdict, Danzie is
controlling and "form" must once again prevail over "substance." 
Appellant tendered a supplement to the record containing proof
positive that his second motion was made, but he failed to include
language indicating the courtþs ruling on the motion.  Because of
that deficiency, appellant has not preserved the sufficiency issue
for appeal. 
     Appellant also contends that the juryþs decision to acquit him
of the offense of carrying a weapon should have negated any finding
that he acted with the requisite intent to commit a first-degree
battery.  That type of argument has been consistently rejected by
our appellate courts.  See Jordan v. State, 323 Ark. 628, 917 S.W.2d 164 (1996); McVay v. State, 312 Ark. 73, 847 S.W.2d 28
(1993); Yedrysek v. State, 293 Ark. 541, 739 S.W.2d 672 (1987). 
Appellant cites no authority for his proposition that þfundamental
fairnessþ requires reversal, and we therefore wonþt consider that
argument on appeal. It is fundamental that absent citation of
authority or convincing argument, we will not consider an argument
on appeal unless it is apparent without further research that it is
well-taken.  Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996).
     Affirmed.
     Stroud, J., agrees.
     Rogers, J., concurs.
=================================================================

                 Judith Rogers, Judge, concurs.

     
     I am in agreement with the decision to affirm appellant's
conviction for first-degree battery on both issues raised in this
appeal.  Specifically, I agree that the record before us does not
disclose that any question pertaining to the sufficiency of the
evidence was preserved for appeal.  I agree that the record does
not reflect any ruling made by the trial court on appellant's
motion for a directed verdict which was made at the close of the
case, and while I agree that the record reflects that a motion for
a directed verdict was made at that juncture, I am of the view that
this motion was not sufficient to preserve the arguments raised in
this appeal.  It is for this reason that I write separately to
concur in the opinion of the court.  
     In this case, the trial court entered an order correcting the
record to reflect that appellant made a motion for a directed
verdict at the close of the case.  Under Rule 36.21(b) of the Rules
of Criminal Procedure, it is necessary to make such a motion in a
jury trial in order to preserve the issue of the sufficiency of the
evidence on appeal.  Also, it has been held that directed verdict
motions must state specific grounds.  Jones v. State, 318 Ark. 704,
889 S.W.2d 706 (1994).  A general reference to "insufficient
evidence" does not satisfy the requirements of the rule.  Daffron
v. State, 318 Ark. 182, 885 S.W.2d 3 (1994).  
     The order entered by the trial court to correct the record
states only the following:
2.  The parties agree that at the conclusion
of the above-captioned case, counsel for the
defendant, Kelvin Meeks, made an oral motion,
pursuant to Rule 36.21(b), for a directed
verdict due to insufficiency of the evidence.
Significantly absent from this statement are the grounds upon which
appellant moved for a directed verdict.  
     The record does reflect that appellant made a specific motion
for a directed verdict at the end of the State's case upon the
grounds which are urged on appeal, and it has been held that the
renewal of a specific motion previously made is sufficient to
preserve the issues raised in the former motion for purposes of
appeal.  Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995).  The
problem here, however, is that the above-referenced stipulation is
general in nature and reflects neither a renewal nor a motion made
on any specific basis at all.  In short, the record is silent as to
the grounds upon which the motion was made, with the result that
any question as to the sufficiency of the evidence has been waived. 
I also note that appellant filed a motion for a new trial in which
he questioned the sufficiency of the evidence on at least one
ground urged on appeal.  However, a motion for a new trial is no
substitute for meeting the requirements of Rule 36.21.  See Easter
v. State, 306 Ark. 452, 815 S.W.2d 924 (1991).
     Moreover, entirely omitted from the order correcting the
record is any mention of a ruling made by the trial court.  As
observed in the opinion, this, too, prevents us from reviewing the
question of the sufficiency of the evidence. 
     I respectfully concur.