Edward Lewis, Jr. v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE JOSEPHINE LINKER HART

DIVISION I

EDWARD LEWIS, JR.

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-303

March 19, 2003

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT

[NO. CR2001-0453]

HONORABLE DAVID N. LASER,

CIRCUIT JUDGE

AFFIRMED

A jury found Edward Lewis guilty of first-degree battery and aggravated assault. He was sentenced as a habitual offender to a term of five years in the Arkansas Department of Correction for first-degree battery with use of a firearm and to twelve years for the aggravated assault conviction, with the sentences to run consecutively. For reversal, appellant argues that the trial court erred by denying his motion for directed verdict because the evidence was insufficient to sustain his convictions for first-degree battery and assault. We disagree and affirm.

On May 6, 2001, the Jonesboro Police Department responded to a shooting at the E. Boone Watson Center where approximately 150 people were gathered. Two days later, the State filed a criminal information alleging that appellant had committed one count of first-degree battery against Maronica Green and one count of first-degree battery against EdwardWolfe. Thereafter, on October 10, 2001, the State filed an amended information, charging

appellant as a habitual offender. At trial on November 29, 2001, the jury was given instructions on the offense of first-degree battery with regard to Wolfe and instructions on aggravated assault. The jury returned a verdict of guilty on both counts, and appellant was sentenced as a habitual offender to a term of five years in the Arkansas Department of Correction for first-degree battery with use of a firearm and to twelve years for the aggravated assault conviction, with the sentences to run consecutively. From that order comes this appeal.

Included among the witnesses who testified at trial on November 29, 2001, were Edward Wolfe, a victim; Maronica Green, a victim; Timothy Smith, a victim; Keithsa Prunty, an eyewitness present at the incident; Natasha Walker, an eyewitness present at the incident; Yamaya Stotts, an eyewitness present at the incident; Officer Roger Morphis, a primary investigator in the case; and appellant.

Edward Wolfe testified that he was at the center when the incident occurred and that he had smoked marijuana earlier in the evening. According to Wolfe, appellant was standing in front of him and there were a number of people around them. Wolfe testified that he witnessed appellant splash beer in Britt Anderson's face and immediately pull out a "big, dark-gray, automatic gun." Wolfe said that he was three to four feet from appellant when appellant pulled out the gun and he was shot in the arm as he was moving away from appellant. Wolfe testified that he was sure appellant shot him because he saw appellant point the gun at him.

Maronica Green testified that she was visiting with friends at the center when appellant and several others drove up in several different cars. Green stated that she saw appellant throw a cup of something in Anderson's face. According to Green, Wolfe then hit appellant with a can and appellant started shooting. Green testified that she saw appellant shoot Wolfe as he was running away from appellant. Although she did not see the gun, Green stated that she saw appellant turn in her direction and she started to run. Green testified that she saw "flashes" and "fire come from the gun." She was holding her two-month-old baby when she was shot in the back of her right leg. Green said that appellant shot at Wolfe five to six times before he shot her.

Timothy Smith, also present at the center, testified that he witnessed a confrontational conversation between Anderson and appellant. Although he did not see appellant shoot anyone, Smith stated that he did see appellant in possession of an automatic gun. According to Smith, he began to run and was shot. Smith further testified that he did not see Anderson strike Lewis, but it "looked like Lewis had been hit and he went to the ground ... he fell sideways and I saw a metal object in his hand ... as soon as he hit the ground the shots went off."

Officer Roger Morphis, a primary investigator in the case, testified that he interviewed fourteen people about the incident including Green, Wolfe, and Smith. According to Morphis, all three identified appellant as the shooter in a photo line-up.

Keithsa Prunty testified that she was approximately eighteen feet from Anderson and appellant when they were arguing. According to Prunty, appellant threw beer in Anderson'sface, Wolfe hit appellant with a beer can, and appellant fell to the ground and "when he came up he was shooting." She further stated that she saw appellant shoot Wolfe and fire six shots at Wolfe; and then turn, shooting toward Anderson. Prunty testified that when she "first heard the gunshots I saw sparks coming from the end of his [appellant's] arm." Moreover, she said that she saw "Lewis stop, unload the gun, grabbed the bottom and reloaded it."

After presenting these witnesses, the State rested, and appellant moved for a directed verdict on both the charge of first-degree battery and aggravated assault, arguing that the State had failed to establish sufficient evidence that appellant had a gun in his hand because the testimony of the witnesses was so inconsistent. In particular, appellant argued that Wolfe, a main witness for the State, admitted he was under the influence of marijuana; and that Green stated that she only saw flashes but did not actually see a gun. Accordingly, appellant concluded that there was insufficient evidence to submit the case to the jury. The trial court denied the directed-verdict motion, stating that the matters of credibility were for the jury to determine and there was ample evidence in the record for the case to proceed to the jury on both points.

Appellant then presented two witnesses on his behalf, Walker and Stotts. Natasha Walker testified that she was present at the center for five to ten minutes when she heard gunshots, and she began running. She stated that she did not see appellant or anyone else with a gun. Yamaya Stotts testified that she witnessed appellant throw his drink on Anderson's face, and she heard gunshots, but she did not see a gun in appellant's hand.

Appellant testified in his own behalf that after he threw a beer at Anderson, hereceived a blow with a can or a bottle on his left side, and he ducked down and started running to his car. He stated that he reached for an unopened can of beer in his pocket to defend himself and ran with it in his hand. Appellant testified that he did not make any effort to contact the police and notify them that someone might have been injured as a result of the shots. He said, "I had just been a victim of a crime and I did not feel it necessary to report it to the authorities." However, two days after the incident, appellant contacted the Jonesboro Police Department and told them that he might be a material witness in an attempted homicide.

Following appellant's testimony, he rested and renewed his motions for directed verdict. Without comment, the trial judge denied the motions. Again, after rebuttal testimony by Green, appellant renewed his motions for directed verdict. The trial court again denied the motions based on the grounds previously stated.

Appellant's sole point for reversal is that the trial court erred by denying his directed-verdict motion because there was insufficient evidence to sustain the convictions of first-degree battery and aggravated assault. Our standard of review in matters such as this is well-settled and oft-stated:

A motion for a directed verdict is a challenge to the sufficiency of the evidence. The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict.

Goodman v. State, 74 Ark. App. 1, 7, 45 S.W.3d 399, 402-03 (2001).

Arkansas Code Annotated section 5-13-201(a)(7) (Supp. 2001) states that a person commits first-degree battery if "[w]ith the purpose of causing physical injury to another person he causes physical injury to any person by means of a firearm." Arkansas Code Annotated section 5-13-204(a) (Supp. 2001) states that a person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.

Viewing the evidence in a light most favorable to appellee, we hold that there was substantial evidence that with the purpose of causing physical injury to another person, appellant caused physical injury to persons by means of a firearm and that appellant purposely engaged in conduct that created substantial danger of death or serious physical injury to other persons under the circumstances manifesting extreme indifference to human life. While it is true that the record on appeal demonstrates that there was evidence suggesting that appellant was not the person who committed the crime, we view the evidence in the light most favorable to the State. The State and appellant offered competing theories as to what role appellant played at the E. Boone Watson Center on May 6, 2001, and the jury simply believed the State's theory of the case. Under these circumstances, we conclude that the denial of the directed-verdict motion was appropriate and affirm.

Affirmed.

Bird and Crabtree, JJ., agree.