Sammy O. Smith v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

TERRY CRABTREE, JUDGE

DIVISION II

SAMMY O. SMITH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 01-218

OCTOBER 24, 2001

APPEAL FROM THE DESHA COUNTY CIRCUIT COURT

[NO. CR 99-108-1]

HONORABLE DON EDWARD GLOVER, CIRCUIT JUDGE

AFFIRMED

A jury sitting in the Desha County Circuit Court convicted the appellant, Sammy O. Smith, of first-degree murder and sentenced him to forty years' imprisonment. On appeal, appellant claims that the court erred in (1) denying his motion for directed verdict, and (2) allowing a police investigator to testify as to why he did not arrest appellant's ex-wife as a suspect. We affirm.

At trial, the State established that on the evening of August 15, 1999, David Crabtree was shot in the face and killed in a room at the Pendleton Motel in Dumas, Arkansas. The appellant and his ex-wife, Ruth Bottoms, were allegedly in the room when Crabtree was shot. At the close of the State's case and again at the close of all of the evidence, appellant moved for a directed verdict contending that the State failed to establish that he acted with a purposeful mental state. Rather, appellant argued that the State only proved that the

shooting was reckless.

A directed-verdict motion is a challenge to the sufficiency of the evidence. Sera v. State, 341 Ark. 415, 17 S.W.3d 61 (2000). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Leaks v. State, 345 Ark. 182, 45 S.W.3d 363 (2001). On appeal, we will review the evidence in the light most favorable to the State and sustain the conviction if there is any substantial evidence to support the verdict. Only evidence supporting the verdict will be considered. Copeland v. State, 343 Ark. 327, 37 S.W.3d 191 (2001).

First-degree murder requires proof that the actor, "with the purpose of causing the death of another person, caused the death of another person." Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). "A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result[.]" Ark. Code Ann. § 5-2-202(1) (Repl. 1997).

On appeal, appellant fails to discuss whether or not the State proved that he acted with the purpose of causing the death of the victim. Rather, appellant focuses on what he characterizes as "the self-serving testimony of Ruth Bottoms and her son Kevin Watson," and he speculates that either of them could have shot Crabtree. This is not the same argument presented to the trial court, and it cannot be raised for the first time on appeal. Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998).

Appellant's newly presented argument should be rejected as well because it merely attacks the credibility of the two witnesses. Bottoms testified that she had once been marriedto appellant, but she was still seeing both appellant and Crabtree at the time of the shooting. According to Bottoms, appellant came over to where she lived - a motel managed by her son, Kevin Watson. Bottoms said that once there, appellant and Crabtree had words with one another. Bottoms stated that she showed appellant to a room and was changing the sheets on the bed when she heard a knock on the door. She went to the door, and Crabtree was there. Crabtree and appellant brushed against one another and appellant, who Bottoms said had recently had surgery on his ankle, fell down. Bottoms testified that Crabtree had his back to the motel-room door and that, before leaving, he put his hands on her shoulders as if to kiss her. Bottoms said that she then heard a shot and said that Crabtree fell back. Bottoms stated that she saw blood on her hand, ran out of the room, and summoned her son, Kevin Watson.

Kevin Watson testified that he heard Crabtree and appellant arguing at the motel after appellant had arrived. Watson said that his mother had gone to prepare a room for appellant and that when she came back, she had blood on her. Watson said his mother told him that appellant had shot Crabtree. Watson testified that he then saw appellant walking down the sidewalk, and Watson asked appellant if he had shot Crabtree. According to Watson, appellant admitted that he had shot Crabtree, and then appellant got in his truck and left.

The medical examiner testified that the gunshot wound to Crabtree's eye that caused his death was consistent with a small caliber bullet in the .22 caliber range and that the victim suffered close-range stippling from the weapon's discharge. There was also evidence that when appellant was arrested, he was found to be in possession of a .22 caliber revolver.

In this case, the jury apparently relied upon the testimony of Bottoms and Watson in reaching its decision to convict appellant. Matters of credibility are for the jury to determine. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). The jury is free to accept some parts of a witness's testimony and reject other parts. White v. State, 47 Ark. App. 127, 886 S.W.2d 876 (1994). Reconciling conflicts in the testimony and weighing the evidence are matters within the exclusive province of the jury and the jury's conclusion on credibility is binding on the appellate court. Silverman v. State, 63 Ark. App. 94, 974 S.W.2d 484 (1998). Circumstantial evidence may constitute substantial evidence and does so if it rules out any other reasonable hypothesis. Mayo v. State, 70 Ark. App. 453, 20 S.W.3d 421 (2000). It was the jury's province to believe Bottoms's and Watson's testimonies and reject any other hypothesis as unreasonable.

Next, appellant maintains that the trial court erred in allowing a police investigator to testify as to why he did not arrest Bottoms as a suspect. During opening statements, defense counsel asserted that the State's evidence would show that "[u]nfortunately, not all of the things that could have been done to determine the truth were done, many important things." In response, during its case-in-chief, the State called Ronnie Mankin, an investigator with the Desha County Sheriff's Office, who investigated the death of Crabtree. Mankin testified that he interviewed both appellant and Bottoms. The prosecutor asked Mankin, without objection, whether Bottoms was arrested. Mankin stated that she was not "based on the interviews that were done." The prosecutor then asked the investigator if there was any other evidence that would connect her to the crime scene. Defense counsel objected on thebasis that this called for a conclusion that only the jury could decide. The prosecutor responded that it was relevant to answer defense counsel's charge that the police investigation was not complete and that the police went through the process of eliminating suspects. Appellant's objection was overruled.

A trial court's ruling on the admissibility of evidence will not be overturned absent a manifest abuse of discretion. Guydon v. State, 344 Ark. 251, 39 S.W.3d 767 (2001). Appellant argues that what the officer said "went to the very heart of the issue the jury was to decide." We believe, however, that the jury was to decide the guilt or innocence of appellant, not that of a suspect who Mankin eliminated from further consideration. Mankin's conclusion with regard to why he eliminated Bottoms as a suspect is not a conclusion as to the guilt or innocence of appellant. Therefore, the trial court did not abuse its discretion in allowing the testimony.

Affirmed.

Bird and Griffen, JJ., agree.