Dominic Simpson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION III

DOMINIC SIMPSON,

APPELLANT

V.

STATE OF ARKANSAS,

APPELLEE

CACR01-684

DECEMBER19, 2001

APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT,

NO. CR99-570-I,

HON. JOHN H. WRIGHT, JUDGE

AFFIRMED

On December 13, 1999, appellant, Dominic Simpson, and co-defendant, Samuel L. Henderson, were charged with murder in the first degree, a Class Y felony, in connection with the death of Paul Hill in Garland County, Arkansas. Simpson's case was severed from that of the co-defendant. At trial, Simpson was found guilty and sentenced to forty years in the Arkansas Department of Correction on the murder charge. Simpson was seventeen years of age at the time of the offense and was tried as an adult in circuit court. On appeal, Simpson asserts that the trial court erred by (1) failing to grant his motion to transfer his case to juvenile court and (2) failing to grant his motion for directed verdict. We affirm.

Motion to Transfer to Juvenile Court

Simpson filed a motion to transfer to juvenile court pursuant to Ark. Code Ann. § 9-27-318(e)(Supp. 1999) and a hearing on the motion was held on August 28, 2000. Simpson intended to present testimony by his mother and grandmother at the hearing. However, the

witnesses had not been subpoenaed and did not appear at the hearing. Simpson's counsel moved for a continuance, to which the State objected, and the judge denied the motion.

Simpson did not take an interlocutory appeal from the denied motion to transfer; instead, he challenged the ruling on direct appeal from his conviction in circuit court. An appeal from an order granting or denying a transfer to juvenile court must be raised by interlocutory appeal, and an appeal from such an order after a judgment of conviction is untimely. Hamilton v. State, 320 Ark. 346, 350, 896 S.W.2d 877, 879 (1995). Therefore, because Simpson did not challenge the denial of his motion for transfer of his case to juvenile court by interlocutory appeal, but waited to bring his appeal after he was convicted, his appeal is untimely and we cannot consider it.

Sufficiency of the Evidence

Simpson contends that the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence to convict him of first degree murder. Arkansas Code Annotated section 5-10-102(a)(1) (Repl. 1997) provides:

A person commits murder in the first degree if acting alone or with one (1) or more persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life.

Simpson argues that the State did not provide sufficient evidence to support the two elements in question: 1) the underlying felony; 2) Simpson's mental state.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). Where the sufficiency of the evidence ischallenged on appeal from a criminal conviction, we will affirm if the finding of guilt is supported by substantial evidence. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Fudge v. State, 341 Ark. 759, 20 S.W.3d 315 (2000). In determining the sufficiency of the evidence, we review the proof in the light most favorable to the State, considering only that evidence which tends to support the verdict. Id.

Contrary to Simpson's argument, the evidence presented at the trial shows more than his mere presence at the crime scene. On December 13, 1999, Paul Hill, a Hot Springs taxi driver, was shot and killed in his cab in front of a house at 538 Grove Street. Reverend Terry Smith testified that he was driving down Grove Street and saw the cab stopped in front of a house. As Reverend Smith approached the cab, he heard gunshots and began to back up his car. Reverend Smith stated that he saw two black males leave the back seat of the cab and that another man left from the front passenger seat of the taxi; all three ran toward the house.

Shaquilla Jones testified that she was at her apartment complex on Illinois Street when she heard gunshots in the distance that same night and later saw three young black males run through the complex. Jones recognized one of them as Simpson, whom she knew from school. Jones also stated that she did not know the other two individuals.

Dennis White, Simpson's step-father, testified that he owned a .25-caliber pistol that he kept in a locked drawer in his bedroom. When White noticed the gun was missing, he asked Simpson about it, and learned that Simpson had taken it. After Simpson returned thegun, which had no bullets in it, White took it home and buried it in his yard. White testified that when he returned home the next day, there were police officers at his house and that he turned the gun over to them.

Aaron Burns testified that on December 13, 1999, he was with Simpson and Samuel Henderson at the Hot Springs Youth Center. Burns stated that they left and went by Simpson's aunt's house, where she gave Simpson a plastic bag containing some clothes, and that they then went to Wendy's. Burns testified that Simpson gave him some money and sent him inside to get some hamburgers while Simpson and Henderson waited outside. Burns testified that when he returned, he heard Simpson and Henderson talking about "hitting a lick," which Burns explained could mean robbing someone. Then Simpson called a cab and, when it arrived, told everyone where to sit, and then told the cab driver to go to a house on Grove Street. Simpson knew the house was vacant because his aunt had once lived there. Burns testified that Henderson pulled a gun out on the way to Grove Street and that Burns and Simpson got out when the cab stopped. Burns then described hearing gunshots from the cab as they walked away, and then Henderson ran to them and told them to follow him. Burns stated that he remembered that Simpson and Henderson were wearing jackets, and that after the gun had been hidden, Simpson proposed exchanging jackets.

The foregoing evidence establishes that Simpson participated in planning the robbery; that he procured the gun that was used in the robbery; that he selected the location where the robbery was to occur; that he was in the immediate vicinity when the cab driver was shot; and that, in suggesting the exchange of jackets with Henderson after the shooting,he took action to avoid being discovered following the shooting. We think that this evidence was sufficient for the judge to deny Simpson's directed-verdict motion. The culpable intent relates to the underlying felony, the attempted robbery, not to the murder itself. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). Therefore, substantial evidence of both elements, mental state and underlying felony, have been sufficiently demonstrated by the State and we affirm.

Affirmed.

Crabtree and Baker, JJ., agree.