Addison Bohannan v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION II

CACR 01-952

November 20, 2002

ADDISON BOHANNAN APPEAL FROM CARROLL COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE ALAN D. EPLEY,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Addison Bohannan was found guilty by a Carroll County jury of first-degree murder for which he was sentenced to fifteen years in prison. Appellant argues on appeal that the evidence is insuffi cient; that the trial court erred in denying his motion to suppress the statements he made to the police and the physical evidence seized from his home; and that the trial court erred in admitting the testimony of witnesses called by the State in rebuttal. We find no error and affirm.

The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Cook v. State, 76 Ark. App. 447, 68 S.W.3d 308 (2002). Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001). On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002).

A person commits murder in the first degree if, with the purpose of causing the death of another person, he causes 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 enage in conduct of that nature or to cause such a result. Ark. Code Ann. § 5-2-202(1) (Repl. 1997).

The victim, Danny Strickland, was appellant's nephew. He and his wife, Christy, were living with appellant on August 29, 1999. Christy testified that she and Danny were arguing over money and that appellant screamed at them to get out, saying that he did not want to listen to their fighting anymore. She said that appellant went into his bedroom and came back into the living room carryinga rifle. Christy could not recall what appellant said, but she remembered that appellant pointed the gun at Danny who said, "Go ahead. Shoot me. I ain't afraid to die." Appellant went into his bedroom, and the Stricklands went into their bedroom. Christy testified that she heard the "clicking sound" of appellant loading the gun and that he came into their room. She said that appellant pointed the gun at Danny and shot him after saying, "You want to f___ with me?" Christy ran next door and called 911.

Officers Al Frost and James Loudermilk of the Eureka Springs Police Department responded to the call. When they arrived, Loudermilk stayed with Christy and Danny who were at the street, and Frost walked up to the house to speak to appellant, who was sitting in a chair outside drinking beer. Loudermilk approached the house once the ambulance arrived. They were later joined by Detective Morris Pate. The officers testified that appellant volunteered that he had shot "the son-of-a-bitch" because Danny had called him a "pussy" and that he had used a Remington .22 rifle that was inside the house. Appellant said that he had loaded the gun with hollow-point shells moments before the shooting. He spoke of Danny in unfavorable terms and expressed dissatisfaction with Danny and Christy staying with him. He also told the officers that "he would do it again," and that he hoped Danny would die. The officers retrieved the rifle from the house and recovered threespent cartridge casings. Ballistics showed that the casings were fired from the rifle.

Appellant was arrested at the scene on a charge of first-degree battery, but Danny died later that evening. The autopsy showed that the cause of death was two gunshot wounds, one to the right arm and the other to the back. The shot in the arm passed through the arm, entered the chest, and ended up in the stomach. The shot to the back lodged in his chest. Either shot would have proved fatal.

Appellant testified that Danny and Christy were arguing loudly and that he confronted them when he heard Danny hitting Christy. He said that he told them to get out of his house but that Danny called him names, said that he did not have to leave, and that he was "going to take that damn splitting maul and knock your brains out." Appellant said that he got his gun and fired one shot in the air as a warning. He testified that he shot Danny as he was turning to reach for the axe handle.

Appellant argues on appeal that there is no substantial evidence to support the conclusion that he acted "purposely." He contends that it was not his conscious object to kill the victim. Intent can seldom be proven by direct evidence and must usually be inferred from the circumstances surrounding the crime. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). Because of thedifficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequences of his acts. Brown v. State, 54 Ark. App. 44, 924 S.W.2d 251 (1996). When the evidence is viewed in the light most favorable to the State, it shows that appellant retrieved a rifle, loaded it with hollow-point shells, and shot the victim two times at close range. We hold that there is substantial evidence to support the verdict.

Appellant next argues that the trial court erred in allowing the State to call a series of rebuttal witnesses. He argues that their testimony was not proper rebuttal testimony and that the testimony was inadmissible under Ark. R. Evid. 404(b). Our review of the record reveals that appellant did not raise these precise arguments at trial. Parties may not change the grounds for objection on appeal but are bound by the scope and nature of the objections and arguments presented at trial. Hutcherson v. State, 74 Ark. App. 72, 47 S.W.3d 267 (2001). This is not a technical hurdle to be overcome but is rather a practical rule designed to give the trial judge a fair opportunity to decide whether the evidence is or is not admissible. Threadgill v. State, 74 Ark. App. 301, 47 S.W.3d 304 (2001), aff'd on review, 347 Ark. 986, 423 S.W.3d 423 (2002). Because appellant failed to preserve these arguments at trial, we decline to address them.

Prior to trial, appellant moved to suppress the statements he made to the police. In addition to those statements made by appellant at the scene, appellant made statements concerning the shooting while being taken to jail by Officer Loudermilk after his arrest. Appellant made statements to Detective Pate when he was being transported to the probable cause hearing the next day. Appellant was also interviewed by Detective Pate. The statements made by appellant at the scene and during both instances when he was being transported were recorded by means of a voice-activated tape recorder. The interview with Detective Pate was recorded on video tape. The statements made to Detective Pate differed from the other two in that appellant told Pate that Danny was coming at him with an axe handle or was reaching for it and about to assault him when he fired the shots.

Appellant presented several arguments at the suppression hearing. He argued that he was in custody when the officers made their initial contact with him and that the officers' questions were not investigatory in purpose. Appellant also contended that he was not apprised of his rights under Miranda, but he argued that, if he had been informed of his rights, the warnings given to him were incomplete.

Appellant argues on appeal that his Miranda rights were not adequately explained to him because he was not informed that he hadthe right to have counsel present during questioning. He further argues that there is no evidence that he agreed to waive his rights. In his argument before the trial court, however, appellant contended that the Miranda warnings given to him were deficient on the ground that he had not been informed that he could stop questioning at any time. In its written order denying the motion, the trial court, citing Wofford v. State, 330 Ark. 8, 952 S.W.2d 646 (1997), ruled that the failure of the officers to inform appellant that he had the right to cut off questioning did not violate the Supreme Court's holding in Miranda. The issue appellant now raises on appeal with regard to Miranda was not raised or ruled upon below. Likewise, appellant did not argue at the hearing that his statements were illegally obtained because there was no evidence that he had waived his rights. As noted in the previous discussion, appellant cannot change his grounds for objection. Stated another way, we do not address issues that are raised for the first time on appeal. Rodgers v. State, 348 Ark. 106, 71 S.W.3d 579 (2002). Therefore, we affirm the denial of appellant's motion to suppress the various statements made by him to the police.

Appellant's final point is that the trial court erred in denying his motion to suppress the evidence seized from his home without a warrant. When this court reviews a trial court's rulingon a motion to suppress, we make an independent determination based upon the totality of the circumstances. Gilbert v. State, 341 Ark. 601, 19 S.W.3d 595 (2000). We will reverse the trial court's ruling only if it is clearly against the preponderance of the evidence. Norman v. State, 326 Ark. 210, 931 S.W.2d 96 (1996).

At the hearing, the officers testified that appellant told them that they could get the rifle from the house so long as they brought it back in time for deer season. Officer Frost went inside the house to locate the weapon. The main entrance to the home was through appellant's bedroom. He saw an opened box of .22 shells on the bed. As he walked through the house, he saw blood and the shell casings in the other bedroom, and a trail of blood droppings going through the residence and out of the front door. He found the rifle appellant described in the living room. Frost did not remove anything from the house at that time. Once appellant was arrested, he and Detective Pate entered the house and gathered the evidence Frost had observed. There was also testimony that, when appellant was arrested, he asked them to get his boots from inside the house.

The trial court ruled that appellant had given consent for the officers to enter the house. Appellant argues that the trial court's ruling is in error because the officer's search exceededthe scope of appellant's consent, which was limited to retrieving the rifle.

Although a warrantless entry into a private home is presump tively unreasonable, such a presumption may be overcome if the law-enforcement officer obtained consent to conduct the warrantless search. McFerrin v. State, 344 Ark. 671, 42 S.W.3d 529 (2001). A search based on consent may not exceed, in duration or physical scope, the limits of the consent given. Ark. R. Crim. P. 11.3 However, officers may seize evidence that is in plain view. See Wofford v. State, supra; Williams v. State, 54 Ark. App. 353, 927 S.W.2d 801 (1996). Here, Officer Frost saw the evidence in plain view as he was looking for the rifle. The trial court's ruling is not clearly against the preponderance of the evidence.

Affirmed.

Vaught and Crabtree, JJ., agree.