Jimmy Harvey v. State of Arkansas

Annotate this Case
ar03-784

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

JIMMY HARVEY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 03-784

APRIL 28, 2004

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FIRST DIVISION

[NO. CR 01-3578, CR 02-1940]

HONORABLE MARION ANDREW HUMPHREY, JUDGE

AFFIRMED

John B. Robbins, Judge

Appellant Jimmy Harvey was convicted in a bench trial of committing one Class Y felony terroristic act and two Class B felony terroristic acts pursuant to Arkansas Code Annotated section 5-13-310 (Repl. 1997), which provides:

(a) For the purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:

(1) He shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers; or

(2) He shoots with the purpose to cause injury to persons or property at an occupiable structure.

(b)(1) Any person who shall commit a terroristic act as defined in subsection (1) of this section shall be deemed guilty of a Class B felony.

(2) Any person who shall commit a terroristic act as defined in subsection (a) of this section shall be deemed guilty of a Class Y felony if the person, with the purpose of causing physical injury to another person, causes serious physical injury or death to any person.

(c) This section shall not repeal any laws or parts of laws in conflict herewith, but shall be supplemental thereto.

Based on the same evidence, the trial court revoked the probation Mr. Harvey was serving at the time the crimes were committed. Mr. Harvey was sentenced as a habitual offender to three concurrent twenty-one year prison terms, to be served concurrently with a ten-year sentence for violating his probation.

Mr. Harvey now appeals, arguing that there was insufficient evidence to support his convictions. He also argues that there was insufficient evidence to revoke his probation. We find no error and affirm.

Carnell Jackson testified for the State. He testified that, at about 9:45 p.m. on April 9, 2002, he left his house driving in his girlfriend's car. His girlfriend, Jerica Johnson, was in the front passenger's seat, and their four-year-old daughter sat between them. Soon thereafter, Mr. Jackson heard gunshots, and bullets came through the car door and back windshield. Mr. Jackson ducked down, lost control of the car, and hit a tree. While the shooting continued, he was able to exit the car, run to a nearby house, and call for emergency assistance.

Mr. Jackson was unable to identify the perpetrators, but estimated that there were three or four people shooting, and that about fifty shots were fired. He stated that a bullet grazed his arm and went through his pant leg. Ms. Johnson was not hit by any of the gunfire, but their daughter was struck in the head. As a result of the head wound, their daughter sustained a permanent brain injury and is partially disabled on the left side of her body. Although he did not see him shooting that night, Mr. Jackson told the police that he thought Mr. Harvey might be responsible because he suspected that Mr. Harvey had earlier stolen car-stereo equipment from him.

Ms. Johnson testified that she saw three people shooting guns, and she identified Mr. Harvey as the first person to begin shooting. After the shooting stopped, she saw Mr. Harvey and Ali Holloway running toward Mr. Harvey's parked car, which was a brown Oldsmobile. However, after grabbing the door handle, Mr. Harvey ran past his car, and Mr. Holloway followed. At that time, Ms. Johnson ran to a friend's house. Mr. Harvey's car was later impounded, and it was discovered that the door handle was broken, and that the car contained stereo equipment stolen from Ms. Johnson's car.

On cross-examination, Ms. Johnson stated that, along with identifying Mr. Harvey and Ali Holloway, she told the police she was one-hundred-percent sure that Naim Holloway was shooting also. Ms. Johnson acknowledged that she probably made a mistake, and that she does not know whether or not Naim Holloway was there that night. However, she stated, "Of all of the things I am sure about that night, the one thing I am most sure about is that Jimmy Harvey was the one that fired the first shot at my car when I turned the corner."

Gary Lawrence, a firearms expert for the Arkansas State Crime Lab, examined twenty-one expended cartridge casings found at the location of the crimes. He testified that all of the casings were 7.62 x .39 caliber, and confirmed that at least nine of them were fired from the same firearm. Mr. Lawrence concluded that all twenty-one casings were consistent with being fired from an AK-M or AK-47 style assault rifle. Sheva Norment of the Little Rock Police Department Crime Scene Unit testified that she processed Mr. Harvey's vehicle and found a 7.62 x .39 caliber live round in the ashtray in the front seat area. The only firearm discovered during the investigation was a .38 caliber pistol, which was found in an alley near the crime scene.

Detective Keith Cockrell investigated the crimes and conducted a taped interview of Mr. Harvey on April 10, 2002. During the interview, Mr. Harvey admitted that he witnessed the shootings, but denied being a participant. Mr. Harvey told Detective Cockrell that he saw Ali Holloway and a man named Antoine shooting at the victims' car.

Detective Todd Hurd testified that he was investigating the crime scene on April 9, 2002. He stated that while he was there with other officers, Mr. Harvey walked up and stated he was there to pick up the brown Oldsmobile. Mr. Harvey was then arrested.

Detective Ronnie Smith testified that he showed Ms. Johnson some photo spreads, and that she identified Mr. Harvey as one of the shooters. Ms. Johnson told Detective Smith that she recognized photographs of Antoine Simpson and Kenneth Vaught, but stated that they were not involved in the shootings. Ms. Johnson positively identified Naim Holloway as a culprit, but upon further investigation Detective Smith concluded that he was not involved.

Detective Smith performed a gunshot residue test on Mr. Harvey, which was negative. However, he indicated that a negative result does not necessarily mean the subject has not fired a gun.

Antoine Simpson testified for the defense. He admitted that he was at the crime scene on April 9, 2002, and that he fired a .38 caliber pistol one time in the air. He stated that Ali Holloway was firing an AK-47, and that he saw Kenneth Vaught with a shotgun. Mr. Simpson testified that while Mr. Harvey was in the neighborhood, he was not in eyesight when the shootings occurred. Mr. Simpson stated that Mr. Harvey tried to borrow a gun from him earlier that day, that he refused to give him one, and that as far as he knew Mr. Harvey did not have a weapon. Mr. Simpson stated that after the incident, he threw the .38 caliber pistol away somewhere in the neighborhood.

Naim Holloway corroborated Mr. Simpson's account of the events. He maintained that he was not involved, and that Mr. Harvey had nothing to do with the shootings.

Mr. Harvey's first argument on appeal is that there was insufficient evidence to support his convictions for committing a terroristic act. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Stone v. State, supra.

Mr. Harvey argues that there was not substantial evidence to support his convictions because, while there was evidence that he was present when the shootings occurred, there was insufficient evidence that he possessed and fired a weapon. He notes that, in his taped statement to the police, he denied participation in the shootings. Both Antoine Simpson and Naim Holloway acknowledged that Mr. Harvey was there, but both stated he was not involved in the shootings.

Mr. Harvey concedes that in her testimony Ms. Johnson identified him as one of the shooters, but submits that when balanced with the other testimony this failed to meet the State's burden of proof. He notes that she was the only witness to testify that he had a gun, and that he tested negative for gunshot residue. Mr. Harvey contends that Ms. Johnson's testimony was suspect because she had earlier misidentified Naim Holloway as one of the perpetrators, she erroneously told the police that Antoine Simpson and Kenneth Vaught were not involved, and because she was highly emotional and desperately wanted someone to pay for the injury to her daughter.

We hold that Mr. Harvey's challenge to the sufficiency of the evidence to support his convictions is not preserved for review. While he made a motion for dismissal at the close of the State's case, he failed to make a motion for dismissal at the close of the evidence as required by Rule 33.1 of the Arkansas Rules of Criminal Procedure. Rule 33.1 provides, in pertinent part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.

(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment....

After Mr. Harvey rested his case, the State made its closing argument. Mr. Harvey then made his closing argument, wherein he challenged the credibility of Ms. Johnson, and argued that "taken all the evidence before this court" the State failed to prove his guilt beyond a reasonable doubt. However, Mr. Harvey's closing argument was not the equivalent of a timely motion to dismiss.

In State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002), our supreme court stated that Rule 33.1 is to be strictly construed, and held that a motion for a directed verdict that was made during a closing argument instead of at the close of the evidence did not preserve a sufficiency argument for appellate review. In McClina v. State, 354 Ark. , S.W.3d (October 9, 2003), the appellant in a bench trial failed to make a motion for dismissal at the close of the evidence, but asked the supreme court to treat his closing argument as a motion for dismissal and reach the merits of his sufficiency argument. In rejecting his request, the supreme court wrote:

In the present case, McClina failed to make a motion for dismissal. Instead, during his closing argument, defense counsel argued that McClina was not a credible witness and stated that there was a reasonable doubt as to McClina's guilt. At no time did McClina ask for a dismissal of charges. Under Holmes, supra, and Etoch [v. State, 343 Ark. 361, 37 S.W.3d 186 (2001)], we adhere to a strict interpretation of our rules. In order to preserve the issue of sufficiency of the evidence, McClina had to make a motion for dismissal at the close of all evidence before closing arguments. Because of his failure to do so, he did not preserve his sufficiency challenge for appellate review. We hold that McClina failed to comply with Ark. R. Crim. P. 33.1(b) and (c). Therefore, we will not address the merits of McClina's sufficiency argument.

McClina v. State, 354 Ark. at , S.W.3d at . Similarly, in the instant case Mr. Harvey failed to preserve his sufficiency argument because he failed to comply with Ark. R. Crim. P. 33.1(b) and (c).1

We note that, even if Mr. Harvey's sufficiency argument had been properly preserved for review, it would have been of no avail because there was substantial evidence to support his convictions. Mr. Harvey concedes that Ms. Johnson identified him as one of the shooters, and the testimony of one eyewitness alone is sufficient to sustain a conviction. See Lenoir v. State, 77 Ark. App. 250, 72 S.W.3d 899 (2002). Moreover, the trier of fact is free to believe all or part of a witness's testimony, and we are bound by the factfinder's determination on the credibility of witnesses. Harmon v. State, 340 Ark. 18, 8 S.W.3d 472 (2000). Ms. Johnson unequivocally identified Mr. Harvey as one of the gunmen who attacked her family, and her testimony supported his convictions for committing terroristic acts.

Mr. Harvey's remaining argument is that the trial court erred in revoking his probation. He correctly cites Barbee v. State, 346 Ark. 185, 56 S.W.3d 370 (2001), for the proposition that, in revocation proceedings, it is unnecessary to make a motion for dismissal to preserve a challenge to the sufficiency of the evidence on appeal.

In revocation proceedings, the burden is on the State to prove by a preponderance of the evidence that the defendant inexcusably failed to comply with a condition of his probation. Leflore v. State, 79 Ark. App. 334, 87 S.W.3d 839 (2002). Where the sufficiency of the evidence is challenged on appeal from an order of revocation, we will not reverse the trial court's decision unless its findings are clearly against the preponderance of the evidence. Id. In making our review, we defer to the superior position of the trial court to determine questions of credibility and the weight to be given the evidence. Id. Because the State's burden in revocation proceedings is only a preponderance of the evidence, evidence that is insufficient to support a criminal conviction may be sufficient to revoke probation. Lamb v. State, 74 Ark. App. 245, 45 S.W.3d 869 (2001).

In the present case Mr. Harvey's revocation was based on the trial court's finding that he violated his probation by committing terroristic acts. Because the evidence was sufficient to support his convictions for these crimes, as discussed above, it was clearly sufficient to support the trial court's decision to revoke probation, given the lower standard of proof. We hold that the trial court's decision to revoke Mr. Harvey's probation was not clearly against the preponderance of the evidence.

Affirmed.

Neal and Crabtree, JJ., agree.

1 In his brief, Mr. Harvey cites Igwe v. State, 312 Ark. 220, 849 S.W.2d 462 (1993), where the supreme court held that, in a bench trial, a directed-verdict motion is not required at the conclusion of the evidence to preserve the issue of the sufficiency of the evidence on appeal. However, that case was decided under prior law, and the holding is no longer applicable. On April 8, 1999, our supreme court amended Ark. R. Crim. P. 33.1, and the current version of the rule clearly requires a defendant in a nonjury trial to make of motion for dismissal at the close of the case.