Efrem Burke v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

EFREM BURKE

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-233

December 1, 2004

APPEAL FROM THE CRAIGHEAD COUNTY CIRCUIT COURT

[CR 02-233]

HON. JOHN N. FOGLEMAN, CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

A jury convicted Efrem Burke of the first-degree murder of his three-year-old stepdaughter, M.C., and he was sentenced to forty years in the Arkansas Department of Correction. On appeal, Burke argues that the trial court erred in refusing to grant his motion for directed verdict because the State only presented circumstantial evidence that did not give rise to substantial evidence to warrant submitting the case to the jury. We affirm.

The State presented evidence at trial showing that on the morning of November 27, 2000, Burke brought M.C. to the emergency room claiming that she fell out of his moving vehicle. The child was unresponsive and not breathing. Hospital personnel attempted to revive her, but were unsuccessful. A year later, Burke contacted authorities to make a statement regarding the incident. In that statement, which was played for the jury, he changed his explanation of what happened to M.C. In his revised account, he claimed that she did not fall from his vehicle, but was dead when he found her that morning. Burke asserted that her mother, Sabrina Burke, was to blame for M.C.'s death. He claimed that Sabrina injured the child while Burke was asleep.

Sabrina Burke, however, testified that she did not fight with M.C. that morning. She stated that M.C. did not feel well, so Sabrina allowed her to stay home from preschool. Sabrina stated that she did not hurt M.C. in any way that morning or the evening before. She also testified that while she was at work a few months earlier, on July 5, 2000, M.C. was taken to the hospital for a head injury. She stated that M.C. was in the care of Burke on that day.

Dr. Sonny Anand, Chief of Critical Care Medicine at Arkansas Children's Hospital, testified regarding his treatment of M.C. on July 5, 2000. On that occasion, M.C. had been airlifted to Children's from St. Bernard's Hospital in Jonesboro. The emergency room physician from St. Bernard's had reported that M.C. had been jumping on the bed, then fell and hit her head on the edge of a nightstand. Dr. Anand evaluated a CT scan of M.C.'s brain and found a small linear fracture on the left parietal bone and a small interhemispheric-subdural hemorrhage. He stated that such a small fracture is difficult to see and was not picked up by the physicians at St. Bernard's nor was it noticed by the resident at Children's who initially read M.C.'s scan. Dr. Anand stated that the injury was not consistent with the reported explanation of what happened to the child and that her injuries were more consistent with what would result if she had been dropped from at least fifteen feet or had been traveling in a car going thirty-five to forty miles per hour and had come to a sudden, complete standstill.

Dr. Stephen Erickson, Associate Medical Examiner at the Arkansas State Crime Lab, testified regarding his findings after performing an autopsy on M.C. He determined that her injuries were not consistent with falling out of a vehicle. He did not find evidence of "road rash," nor did he find defensive injuries to her hands. She had injuries to her face that looked somewhat consistent with falling onto pavement, but Dr. Erickson found those injuries to be inflicted while the child was actually dying or after she had died. He stated that those injuries were more consistent with a person dropping the child vertically onto pavement after she had already been fatally injured. He testified that M.C. sustained a major rotational injury to the back of her head. He described the injury as one consistent with "shaken baby syndrome," but where the back of the child's head came in contact with a hard, unyielding object. Dr. Erickson also found evidence that M.C. had experienced another significant injury to her brain that caused bruising and hemorrhaging. He testified that this older head trauma could have been caused from the July 5 incident. He also stated that her chest and heart had been significantly injured by a considerable compressive force, causing five fractured ribs and an almost complete perforation of the heart. The injuries to the heart were not consistent with injuries inflicted from someone performing CPR on the child, but rather from being squeezed between two firm objects or being sat on by a large person. Either of the two injuries, to the brain or the heart, could have caused M.C.'s death, but Dr. Erickson believed it was the combination that caused her death. Dr. Erickson also testified regarding bruises, some of which were older and healing, on the child's back, buttocks, arms, and hands. Dr. Erickson stated that he believed M.C. died as a result of child abuse.

At the close of the State's case, Burke moved for a directed verdict, arguing that the State had presented no direct evidence to prove Burke's guilt, and the case was circumstantial at best. Burke asserted that the evidence presented could lead to reasonable conclusions inconsistent with his guilt, and therefore, the case was insufficient to proceed to the jury. The trial court denied Burke's motion. Burke renewed his motion at the close of all the evidence, the trial court again denied the motion, and the case was submitted to the jury.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Doubleday v. State, 84 Ark. App. 194, 197, 138 S.W.3d 112, 114 (2003). In reviewing sufficiency, we must determine whether the verdict is supported by substantial evidence. Ashe v. State, 57 Ark. App. 99, 104, 942 S.W.2d 267, 270 (1997). Evidence is substantial if it is of adequate certainty and precision to compel a conclusion and pass beyond conjecture and mere suspicion. Stanton v. State, 344 Ark. 589, 597, 42 S.W.3d 474, 479 (2001). Circumstantial evidence may constitute substantial evidence, but it must indicate guilt and exclude all other reasonable hypotheses. Doubleday, 84 Ark. App. at 197, 138 S.W.3d at 114-15. However, "[o]nce the evidence is determined to be sufficient to go to the fact-finder, the question of whether the circumstantial evidence excludes any other hypothesis consistent with innocence is for the fact-finder to decide." Id., 138 S.W.3d at 115. In determining whether evidence is substantial, we review the evidence in the light most favorable to the verdict and consider only evidence that supports conviction without comparing it against other evidence that is favorable to the accused. Stanton, 344 Ark. at 597, 42 S.W.3d at 479. No distinction is made between direct evidence and circumstantial evidence when reviewing sufficiency, Williams v. State, 338 Ark. 97, 106, 991 S.W.2d 565, 569 (1999), nor should we pass on the credibility of witnesses, Cobb v. State, 340 Ark. 240, 244, 12 S.W.3d 195, 197 (2000).

A directed-verdict motion in a criminal case must state the specific ground of the motion. Dixon v. State, 327 Ark. 105, 108, 93 S.W.3d 642, 644 (1997). Arkansas Rule of Criminal Procedure 33.1 provides that "[a] motion for directed verdict based on insufficiency of the evidence must specify the respect in which the evidence is deficient ... merely stating that the evidence is insufficient for conviction does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements." Rule 33.1 is to be strictly construed. Etoch v. State, 343 Ark. 361, 365, 37 S.W.3d 186, 189 (2001). In order to preserve a challenge to the sufficiency of the evidence, a motion for directed verdict must be specific and advise the trial court of the exact element of the crime that the State has failed to prove. Beavers v. State, 345 Ark. 291, 294-95, 46 S.W.3d 532, 535 (2001). The reason for such specificity is to allow the trial court the option of either granting the motion, or, if justice requires, allowing the State to reopen its case and supply the missing proof. Webb v. State, 327 Ark. 51, 59, 938 S.W.2d 806, 811 (1997). A general motion that merely asserts that the State has failed to prove its case is inadequate to preserve the issue for appeal. Beavers, 345 Ark. at 294-95, 46 S.W.3d at 535.

In this case, Burke's motions for directed verdict did not allege specific deficiencies in the State's proof, but rather asserted that the case against him was insufficient because it was entirely circumstantial. Burke maintained the evidence could be interpreted in his favor. Not only does Burke's motion fail to rise to the level of specificity to meet the standard illustrated in the cases above, but it also misconstrues the law concerning circumstantial evidence. Although the evidence may have been capable of more than one interpretation, the jury decides in a circumstantial case whether all reasonable hypotheses consistent with innocence have been excluded. It is only when circumstantial evidence leaves the fact-finder solely to speculation and conjecture that it is insufficient as a matter of law. Doubleday, 84 Ark. App. at 197-98, 138 S.W.3d at 115.

Regardless, substantial evidence was presented to support Burke's conviction. M.C. was in his exclusive care on July 5 when she suffered a severe head injury and on November 27 when she was fatally injured. Burke's explanation of what had happened to the child on both occasions was inconsistent with the medical evaluation of her injuries. Sabrina testified that when she left the apartment on the morning of November 27, M.C. was awake and not injured. Sabrina stated that she did not harm the child in any way. Burke brought the child to the emergency room claiming that she fell out of his vehicle, but a year later admitted that he lied. An autopsy revealed that M.C. died as a result of massive head and chest injuries that, according to the medical examiner, were the product of inflicted abuse.

Viewed in the light most favorable to the State, the evidence indicates that M.C. suffered fatal injuries consistent with abuse during the time that she was in Burke's care, and Burke offered inconsistent explanations for how those injuries occurred. Therefore, we hold that there was substantial evidence for a jury to determine Burke committed the abuse.

Affirmed.

Pittman and Hart, JJ., agree.