Kelvin Nelson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

KELVIN NELSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-756

March 24, 2004

APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY

[NO. CR 02-1806]

HONORABLE CHRISTOPHER CHARLES PIAZZA,

JUDGE

AFFIRMED

Terry Crabtree, Judge

The appellant, Kelvin Nelson, was charged with first-degree murder in connection with the shooting death of Anthony Williams. In a jury trial, appellant was convicted of the lesser-included offense of second-degree murder for which he was sentenced to seventeen years in prison. Appellant's argument on appeal is that the evidence is insufficient to sustain the verdict. We affirm.

Early on the night of November 4, 2001, officers of the North Little Rock Police Department responded to a call of "shots fired" in the 1900 block of Magnolia Street. When they arrived, they found the victim, Mr. Williams, lying just outside the front door of a duplex at 1912 Magnolia. Williams was unresponsive and was bleeding heavily from a large gun-shot wound to his chest. He died at the scene. No weapon was found near his body. It was estimated that the fatal shot had been fired from a distance of four to eight feet.

Officers located appellant lying in the backyard of a nearby residence. He had been shot in the knee. In spontaneously-made statements, appellant told officers that he had shot the victim in self-defense. A shotgun was found under a vehicle that was six to eight feet away from where appellant was found. Witnesses identified this weapon as the one appellant had been seen carrying at various times throughout the day. The witnesses testified that appellant had been looking for Mr. Williams that day and had declared that Williams owed him money and that he was going to kill him if Williams did not pay him back.

Tavio Garrison was inside the duplex at 1912 Magnolia when the shooting took place. The duplex was leased by Eric Stewart, who was at work, but Garrison and appellant were there playing dominoes. Garrison testified for the defense and said that appellant told him that he was having trouble "with some dudes up the street" and that he had a shotgun. Williams and another man came to the door. Garrison said that appellant left the shotgun on the doorstep and went out to speak with them. The conversation became heated, and Garrison stated that Williams pulled out a pistol. Garrison went inside and then heard shots being fired.

In his testimony, appellant admitted that he had shot Williams with the shotgun, but he said that he did so in self-defense. Appellant explained that he had loaned Williams $300 several days before the shooting, and $75 the night before. He said that Williams had promised to pay him back that morning, that he was stranded because his car had been impounded, and that he needed the money to get his car so that he could get back to his home in Jacksonville. Appellant explained that he had obtained the shotgun that day because Williams had threatened him that morning when he had confronted Williams about paying back the loan. According to appellant, Williams and another man named Wren came to the door of the duplex several times. Appellant said that, the last time he opened the door, Williams was pulling a gun up, and he testified that "I had my gun by my side, and I pulled the gun up, took off the safety and shot." He further testified that "when I pulled the shotgun up and I went to fire, I knew it could kill him."

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. Ark. Code Ann. § 5-10-103(a)(1) (Repl. 1997). A person acts "knowingly" with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist, and a person acts "knowingly" with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result. Ark. Code Ann. § 5-2-202(2) (Repl. 1997).

The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Smith v. State, 81 Ark. App. 92, 98 S.W.3d 433 (2003). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. When a defendant challenges the sufficiency of the evidence convicting him, the evidence is viewed in the light most favorable to the State, and only evidence supporting the verdict will be considered. Id. The jury in this case was given instructions on first-degree murder, second-degree murder, and manslaughter, as well as the defense of justification. Appellant argues on appeal that the State failed to establish that he "knowingly" caused the death of Mr. Williams. Appellant, however, did not raise this issue at trial. In his directed-verdict motion made at the close of the State's case, appellant made the following argument:

Your honor at this time the Defense moves for a directed verdict specifically with count one, which is Murder in the First Degree. Specifically, the State has failed to provide substantial evidence that in fact my client in any way caused the death of this individual or if it has made it's case with regard to that as far as prima facie goes, they failed to provide substantial evidence that in fact his mental state was that of for purpose and it was the purpose to cause his death. I think that the facts at this point are uncontroverted that it was a self-defense action, and therefore, they failed to provide substantial evidence of the mental state.

When the motion was renewed at the end of the case, it was stated that "Your honor at this time I am going to renew my motion for a directed verdict, and I'll base it on the same reasons as made prior."

As can be seen, appellant argued in his directed-verdict motion that the State failed to establish the requisite mental state for first-degree murder, which requires the accused to act with the "purpose" of causing the death of another person. Ark. Code Ann. § 5-10-102(a)(2) (Repl. 1997). Appellant, however, did not challenge the sufficiency of the evidence with regard to second-degree murder and its element of knowing intent. In making a motion for a directed verdict, Rule 33.1 of the Arkansas Rules of Criminal Procedure requires a movant to apprise the trial court of the specific basis in which the evidence is considered deficient. With respect to this specificity requirement, the supreme court has made it clear that a defendant must anticipate an instruction on lesser-included offenses and specifically address the elements of that lesser-included offense on which he wishes to challenge the State's proof. Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). Because appellant failed to include any argument with respect to the lesser-included offense of second-degree murder, the argument that is being made on appeal was not preserved, and we need not address it. Nonetheless, we would be unable to say that the verdict is not supported by substantial evidence. Appellant's claim of self-defense and his own testimony that he knew he could kill Williams by firing the shot belie the argument that it was not proven that he acted "knowingly."

Affirmed.

Stroud, C.J., and Baker, J., agree.