Sheri Lynn Langston v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JOHN MAUZY PITTMAN, JUDGE

DIVISION IV

SHERI LYNN LANGSTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-401

December 5, 2001

APPEAL FROM THE UNION COUNTY CIRCUIT COURT

[NO. CR97-613, CR93-4B]

HON. CAROL C. ANTHONY,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was on probation for offenses involving possession of a controlled substance when she was charged with negligent homicide and leaving the scene of an accident involving death. Shortly after the information was filed on these charges, the State filed a petition to revoke appellant's probation. By agreement of the parties, the trial judge considered the evidence presented in appellant's jury trial for negligent homicide and leaving the scene of an accident involving death as the same evidence the State would present in its petition for revocation. The jury found appellant guilty of both offenses. Appellant was fined $5,000 and sentenced to six years' imprisonment on the negligent homicide charge, and was sentenced to five years' imprisonment on her conviction for leaving the scene of an accident involving death. In addition, the trial judge revoked appellant's probation, sentenced her to five additional years'

imprisonment for each count for which she was on probation, and ordered that the sentences should all run consecutively. From that decision, comes this appeal.

On appeal, appellant contends that the trial court erred in denying her motion for a directed verdict; in allowing into evidence autopsy photographs of the victim; and in ordering that the sentences were to run consecutively. We find no error, and we affirm.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. In reviewing the denial of a motion for a directed verdict, we view the evidence in the light most favorable to the State, considering only the evidence that supports the verdict, and affirm if there is substantial evidence to support the verdict. Rose v. State, 72 Ark. App. 175, 35 S.W.3d 365 (2000). Evidence, whether direct or circumstantial, is substantial if it is of sufficient force that it would compel a conclusion one way or the other without recourse to speculation and conjecture. Id.

Appellant argues that the jury could not have found that she was the person who struck and killed the victim without resort to speculation and conjecture. We do not agree. Appellant admitted at trial that she was driving while intoxicated on the night in question; that she drove on Highway 167 where the victim's body was found; and that she struck something on the road that night near El Dorado with sufficient force to spin her vehicle all the way around. She also stated that she was an alcoholic and subject to blackouts, and that she was so intoxicated she could not say whether what she hit that night was a vehicle, an animal, or a person.

There was, in addition, evidence that the victim was found dead the following morning three and one-half miles from El Dorado on Highway 167. The victim's death was caused by vehicular impact. Fragments of plastic from the grill of appellant's truck were found in the immediate vicinity. Paint matching that of the truck was found on the victim. Hair matching that of the victim was found on the exterior of appellant's truck. Fibers matching samples taken from the victim's clothing were likewise found on appellant's truck. A fabric impression in the dust on the bumper of appellant's truck was consistent with the victim's blue jeans.

Finally, there was evidence that appellant admitted to two separate persons on two separate occasions that she struck a man on Highway 167 on the night in question. The first statement was made during a telephone call to the police department. The victim's stepsister testified that appellant told her that she was the one who hit and killed the victim; that she hit two construction barrels, hit the victim, hit two more barrels, got out of her vehicle, saw the victim's body, and panicked and left the scene. Appellant denied making this statement, but this was a question of credibility for the jury to determine. In light of this evidence, we hold that there is substantial evidence to support appellant's convictions of negligent homicide and leaving the scene of an accident involving death.

Next, appellant contends that the trial court erred by allowing autopsy photographs of the victim into evidence. At trial, the pathologist testified with reference to photographs taken at the autopsy he performed on the victim to determine cause of death. The pathologist stated that the photographs were helpful because they showed details that a drawing couldnot, especially with regard to bruising. On cross-examination, however, the pathologist allowed that the photographs were not strictly necessary to explain his testimony because he could instead employ drawings to show the location of the injuries. Appellant does not argue that the photos were gruesome, but advances the theory that autopsy photographs are inherently inflammatory and should never be used if some other manner of explaining the physician's testimony is available. We do not agree.

Appellant cites no authority for the proposition that such photographs must be absolutely necessary to be admissible, and that is not the law. The proper standard has been recently restated in Upton v. State, 343 Ark. 543, 36 S.W.3d 740 (2001):

Significantly, after applying the Rule 403 balancing test, we have held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand the testimony. Other acceptable purposes are to show the condition of the victim's body, the probable type or location of the injuries, and the position in which the body was discovered. Obviously, when a photograph serves no valid purpose and could only be used to inflame the jury's passions, it should be excluded.

343 Ark. at 551.

Finally, appellant argues that the trial judge failed to exercise her discretion when she ordered the sentences to be served consecutively. This argument is based on the facts that the jury recommended that the sentences be served "separately," and that the trial judge stated that she thought that is what she was "required" to do.

The question of whether sentences should run consecutively or concurrently lies solely within the province of the trial court, and the appellant bears the heavy burden of demonstrating that the trial judge failed to exercise her discretion in ordering consecutive sentences. Teague v. State, 328 Ark. 724, 946 S.W.2d 670 (1997). The fact that the trial court considered the jury's recommendation does not establish that the trial judge failed to exercise her discretion in sentencing. Blagg v. State, 72 Ark. App. 32, 31 S.W.3d 872 (2000).

We think that the appellant has taken the trial judge's remarks out of context. According to the abstract, what the judge actually said was:

[I] am going to order that each of the sentences on each of the basically four separate counts run consecutively for an effective sentence of 21 years. This does not, of course, take into consideration good time. I don't make this decision lightly, but I do note in the record that Ms. Langston's probation was revoked at one other time. She was not sentenced to the Arkansas Department of Corrections. Judge Barnes gave her a break, extended her probation. I am just appalled at what got us here. I have just struggled with this as I listened to the evidence and believe that while she has made efforts in the past for rehabilitation, it hasn't worked. I do not know if this is for lack of trying or just an inability. I don't know. But I find that I just [don't] have a choice in this matter in my mind. I think this is the thing I am required [to do]. And so the sentences ... will be consecutive.

Read in context, we think it apparent that the judge knew that the choice between concurrent and consecutive sentencing was hers to make, and that she made it based upon relevant and appropriate factors such as the likelihood of rehabilitation in light of past efforts, and the danger to the public of setting appellant free in light of her propensity for driving whileintoxicated (she was arrested and convicted for another instance of driving while intoxicated while awaiting trial in the present case, and was convicted of public intoxication when she appeared in court inebriated on the DWI charge). There is no doubt that the trial judge exercised her discretion in ordering the sentences to be served consecutively, and that she did not abuse her discretion in so ordering.

Affirmed.

Neal and Vaught, JJ., agree.