Henry Everett Ambrose, Jr. v. State of Arkansas

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ar02-459

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION III

HENRY EVERETT AMBROSE, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-459

December 18, 2002

APPEAL FROM THE POLK COUNTY CIRCUIT COURT

CR-01-07

HON. GAYLE K. FORD, JUDGE

AFFIRMED

Appellant, Henry Everett Ambrose, Jr., was convicted by a jury of second-degree murder and sentenced to a term of 144 months in the Arkansas Department of Correction and to a fine of $15,000. Appellant argues on appeal that the trial court erred in not granting a directed verdict because there was insufficient evidence to support a conviction, and by admitting an allegedly inflammatory photograph of the victim. We disagree and affirm.

On January 17, 2001, appellant returned to his home at approximately 4:30 p.m., after having consumed approximately ten or twelve beers. Patricia Young, to whom appellant referred as his wife, returned to their home from attending classes at the local community college around the same time. Appellant testified that he went outside with his gun and "made a phone call" to his neighbor by shooting the gun.1 He was later sitting at the kitchen table and inspecting the gun for the purposeof cleaning it, and did not think it was loaded. Ms. Young was standing by the refrigerator discussing the meal she was cooking for the couple and reached into the cabinet for an item. Appellant cocked the hammer, pointed the gun at Ms. Young, and pulled the trigger. The bullet hit Ms. Young in the chest and knocked her to the floor.

Appellant stated that he went over to her to try to help her, but that there was no pulse or sign of breathing. He tried unsuccessfully to drag her to the car, and then the truck, at which time he drug her back into the house. Rather than seeking medical help for Ms. Young, appellant drove to the Country Express store and called his mother to explain what had happened. Several employees and patrons of the store noticed appellant's blood stained overalls and overheard his comments about killing Ms. Young. An employee called local police who arrested appellant while he was still in the store.

Police charged appellant with first-degree murder in violation of Arkansas Code Annotated section 5-10-102 (Repl. 1997), a Class Y felony, alleging that with the purpose of causing death to Patricia Young, he caused her death. At the close of the State's case, appellant moved for a directed verdict, arguing that "the State has failed to prove certain elements of murder in the first degree, those elements being that Everett Ambrose[,] with the purpose and intent[,] caused the death of Patricia Young[.]" The trial court denied appellant's motion. At the close of all of the evidence, appellant renewed his directed-verdict motion, which was again denied. The jury was instructed on the elements of both first-degree murder and second-degree murder, and appellant was convicted of the lesser charge of second-degree murder. Pursuant to Arkansas Code Annotated section 5-10-103(a)(1) (Repl. 1997), a person commits murder in the second degree if he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.

On appeal, appellant challenges the sufficiency of the evidence to support his conviction. However, he was charged with first-degree murder and his motion for directed verdict only addressed that charge and not the lesser-included offense of murder in the second degree, for which he was ultimately convicted. Our supreme court has held that in order to preserve a challenge to the sufficiency of the evidence to support a conviction for a lesser-included offense, a defendant's motion for directed verdict must either name the lesser-included offense or apprise the trial court of its elements. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). A defendant's failure to address the lesser-included offense precludes appellate review of the sufficiency of the evidence sustaining it. Because appellant failed to move for a directed verdict on the lesser-included offense of second-degree murder, he is procedurally barred from challenging the sufficiency of the evidence on appeal.

Appellant also argues that the trial court erred in admitting into evidence State's Exhibit #23, a photograph of the victim at the scene of the shooting, contending that the photograph was not necessary and that its inflammatory nature outweighed the probative value. The admission and relevance of a photograph are matters within the sound discretion of the trial court, see Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000), and this court will not reverse a trial court's admission of photographs absent an abuse of discretion. Halford v. State, 342 Ark. 80, 27 S.W.3d 346 (2000).

During appellant's trial, an objection was made out of the hearing of members of the jury panel as follows:

BY MR. BLOUNT: We object to the introduction of a photograph by the State that depicts the body of the victim as being inflammatory in nature. The State has ample diagrams to demonstrate the position of the body in relation to the furniture and appliances in the room, therefore the photograph is not necessary and it's the inflammatory nature of the photograph outweighs the probative value.

BY THE COURT: Denied.

Our supreme court has 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 testimony." Sanders, 340 Ark. at 169, 8 S.W.3d at 524. Other acceptable purposes for photographs are to show the condition of the victim's body or the probable type or location of the injuries. Id. Additionally, photographs showing the nature and extent of a victim's injuries may be "relevant to a showing of intent, which may be inferred from the type of weapon used, the manner of use, and the nature, extent and location of the wounds." Id. at 170, 8 S.W.3d at 525. We conclude that there was no abuse of discretion in admitting the photograph on the basis of necessity.

Furthermore, appellant contends that because the trial court simply denied his objection, there is nothing in the record to indicate that the trial court carefully weighed the probative value of the photograph against its prejudicial nature. See Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). Arkansas Rule of Evidence 403 (2002) provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or is a needless presentation of cumulative evidence. The State points out that appellant has changed his argument on the admissibility of the photograph on appeal. Appellant did not request that the trial court weigh the probative value of the photograph against its prejudicial nature subsequent to the denial of his initial objection. This factual scenario is identical to that in Riggs v, State, 339 Ark. 111, 3 S.W.3d 305 (1999), where the supreme court held that it would not reverse the trial court for failing to do what it was never asked to do. The court ruled that it was incumbent on defense counsel to request a probative-prejudicial weighing if it considered it to be important or legally required. Id. Weagree, and find that the responsibility to make such a request was on appellant, and in light of his failure to do so, we hold that there was no abuse of discretion by the trial court.

Affirmed.

Crabtree and Roaf, JJ., agree.

1 There was not a phone in appellant's home, and apparently, he and his neighbor would contact each other through a series of shots with their pistols. Appellant testified that he never shot the gun into the air, but rather at a stump or some similar object.

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