Albert O. Wilson v. State of Arkansas

ar04-140

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

CACR04-140

March 9, 2005

ALBERT O. WILSON AN APPEAL FROM MISSISSIPPI

APPELLANT COUNTY CIRCUIT COURT

[CR02-317]

V. HON. DAVID BURNETT, JUDGE

STATE OF ARKANSAS

APPELLEE REVERSED AND DISMISSED

Wendell L. Griffen, Judge

Albert Wilson appeals his conviction for manslaughter in the shooting death of Daniel Nichols. He argues that the trial court erroneously denied his motion for a directed verdict. We hold, contrary to the State's contention, that Wilson's motion for directed verdict was adequately preserved for appellate review. We further hold that Wilson's conviction was not supported by sufficient evidence. Thus, we reverse his manslaughter conviction and dismiss.

Nichols was shot on the evening of September 3, 2002. Forensic evidence showed that Nichols's death was the result of three gunshot wounds: one from a .25-caliber weapon and two from a .22-caliber weapon. Any one of the three shots could have been fatal according to testimony by the medical examiner at trial. A .25-caliber cartridge was found at the scene and matched a .25-caliber semiautomatic pistol also found at the scene. The two .22 bullets were fired from the same gun. An expert in firearms testified that it was highly improbable that the .25-caliber gun could have fired the .22-caliber shells. Officer Debbie Wright of the Blytheville Police Department found the gun and testified that one round in the gun had been "stove piped" (the round had stuck in the chamber without being ejected, preventing the gun from being fired). Officer Wright also found a cell phone, a pair of glasses, and a diamond earring.

Testimony at trial showed that Wilson was driving with his brother, James Hudson, when they decided to pick up another friend, Quinton Williams. While riding, the three saw an individual later identified as Harold Weeden. They picked up Nichols from his girlfriend's house and returned to where they saw Weeden. Wilson pulled over. Williams, Nichols, and Hudson got out of the car while Wilson remained in the car. There were varying accounts of what occurred afterwards.

Williams testified that Nichols and Weeden exchanged words and that Nichols struck Weeden. Weeden then stumbled back and shot once in the direction of Nichols and Williams. Williams testified that neither Nichols, Hudson, nor he had a gun. He testified that he ducked behind the car, heard more shots, and ran north. While running, he heard shots that were different from the first shots. Williams testified that, after he ran onto another street, Wilson picked him up. Nichols and Hudson were already in the car. Afterward, Wilson drove to the hospital.

Hudson testified that before Nichols said anything, Weeden pulled out a gun and started shooting. Nichols and Weeden started tumbling in some flowers. Hudson testified that Williams told him to go get the gun, but he did not do so. Hudson heard two more gunshots and then started running around the corner. He ran to where he could still see the area. Hudson testified that when he turned around, Wilson told him to see what was wrong with Nichols. By the time Hudson made it back to the car, Nichols had picked himself up and ran to the car. Hudson testified that Wilson never got out of the car.

Weeden, who is currently serving five years' imprisonment for his involvement in Nichols's death, testified that Nichols walked toward him, reached in his shirt, and that he (Weeden) pulled out a gun and shot at him (Nichols). Weeden had a .25-caliber weapon with four rounds in it. Weeden said that he shot Nichols in the stomach and that Nichols fell toward him. The two started wrestling. Weeden heard gunshots while the two were struggling, and he ran. He heard more gunshots while he was running and testified that while he did not know how many shots he heard, he heard more than one. Weeden said that the gun and the other items found at the scene were his property and testified that Hudson had a gun that night as well. On cross-examination, Weeden testified that he never saw Wilson get out of the car and that he never saw Wilson with a gun. He also said that Nichols was getting to his feet when he left.

Gary Buys and Marvin Crawford, detectives with the Blytheville Police Department, investigated the shooting. Wilson gave them a taped statement the morning after the shooting. In his statement, Wilson stated that when Nichols got back in the car, Weeden stole a .38 snub-nosed pistol from Nichols. Wilson stated that there was another weapon involved and that other weapon came from Weeden. When discussing the fight between Nichols and Weeden, Wilson stated that Nichols hit Weeden in the face, and then Weeden fired a shot into the air. While they were wrestling for the gun, Wilson said he heard another shot, and as he heard someone say "oh," he heard another shot. He then saw Nichols lying on the ground, Weeden fire a shot into Nichols's left abdomen, and Weeden run away. Wilson yelled at Nichols to get up. Nichols walked toward the car and then fell. Wilson said that he helped Nichols into the car. Wilson then went to pick up Williams and Hudson. He dropped Nichols and Hudson at the hospital. He said that he then dropped off Williams and called his mother, who later took him to the police station.

Crawford testified that Wilson gave another statement prior to the taped interview, but that statement was not recorded. In that first statement, Wilson stated that he exited his vehicle with a .38-caliber weapon. When running toward the sidewalk, Wilson said that he tripped and the gun went off. Bobby Stabbs of the Criminal Investigation Division of the Arkansas State Police also testified that Wilson stated that he had a .38-caliber weapon and that he got out of the car to help Nichols. However, on recross-examination, Stabbs noted that there was no .38 found to be involved in this case.

Wilson was charged with second-degree murder. The jury convicted him of manslaughter and sentenced him to seven years in the Arkansas Department of Correction.

Wilson argues that the court should have granted his motion for directed verdict, while the State argues that Wilson failed to preserve the issue for appellate review. The following exchange occurred at the close of the State's evidence:

Mr. Harlan (Counsel

for the State): The state rests, save for rebuttal.

Court: Do you have witnesses to call?

Mr. Ellis (Counsel

for Wilson): Your Honor, we rest also. May we approach?

Court: Yes.

(at the bench)

Mr. Ellis: We would like to renew our motion for a directed verdict at this time, Your Honor. It occurred to me in some of your comments earlier that the state's witnesses - they ran - and I think you suggested they - they would not have known what happened. To me that would be all the more reason why you should grant our motion for a directed verdict.

Court: Well, I understand what you're saying. But the fact that the defendant placed himself at the scene of the crime, placed himself on at least two occasions outside of the car and armed with a weapon, what happened after they left, that's - I can't say.

Mr. Ellis: No, sir -

Court: A jury could conclude that he fired -

Mr. Ellis: They would - they would have to reach that conclusion from something other than the evidence that was presented to `em.

Court: No. Based on his statement alone.

The motion for a directed verdict ordinarily must be made at the close of the State's evidence and then renewed at the close of all of the evidence. Ark. R. Crim. P. 33.1 (2004); Proctor v. State, 349 Ark. 648, 79 S.W.2d 370 (2002); Chrobak v. State, 75 Ark. App. 281, 58 S.W.3d 387 (2001). However, when a defendant presents no evidence after a directed-verdict motion is made, further reliance on that motion is not waived. Chroback v. State, supra. In this case, the State rested its case, then Wilson rested his case without presenting additional evidence. Wilson then made his motion for directed verdict.1 Even though the motion was technically made only once, and only at the close of his case, we hold that Wilson's directed-verdict motion was adequately preserved because he presented no evidence after the State closed its case.

Next, the State argues that the motion was not specific enough to preserve the issue. A motion for directed verdict requires the defendant to apprise the trial court of the specific basis for the motion. Bowen v. State, 342 Ark. 581, 30 S.W.3d 86 (2000) (quoting Davis v. State, 330 Ark. 501, 506, 956 S.W.2d 163, 165 (1997)). Simply stating that there was not enough evidence to support a conviction is insufficient to preserve the issue for appellate review. Id. In arguing his motion to the trial court, Wilson stated that the other witnesses did not know what happened and that the jury would have to reach the conclusion that he fired a gun from something other than the evidence. It was not succinctly stated, but the gist of Wilson's motion was that the State failed to prove that Wilson exited the car and shot Nichols. We hold that Wilson's motion was specific enough to inform the trial court where Wilson believed the State failed in proving its case.

Finally, the State argues that the motion for directed verdict must anticipate instructions on lesser-included offenses and specifically address the elements of those offenses on which he wishes to challenge the State's proof. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). To preserve the directed-verdict motion on lesser-included offenses, defendants are required to address each offense, either by name or by apprising trial courts of the elements of the lesser-included offenses, in their motions. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001). Our supreme court stated in Walker v. State, 318 Ark. 107, 883 S.W.2d 831:

Other practical reasons have caused us to require that the grounds for the motion be specified. In multiple-count cases, which mandate different degrees of culpability for the lesser included offenses, it is easy for an element of one of the counts for lesser included offenses to be overlooked. Since a general motion for a directed verdict does not specify the missing element, the trial court is not apprised of the proof that was overlooked. As a result, the trial court is not made aware of the deficiency. See, e.g., Sanders v. State, 310 Ark. 510, 838 S.W.2d 359 (1992).

Id. at 108, 883 S.W.2d at 832, quoted in Jenkins v. State, 350 Ark. 219, 85 S.W.3d 878 (2002). However, in Jenkins v. State, supra, the supreme court stated that a single directed-verdict motion was properly preserved when the State had to prove identical elements on both charges.

In this case, Wilson was charged with second-degree murder and convicted of manslaughter. To prove that Wilson committed second-degree murder, the State had to show that he, with the purpose of causing serious physical injury to another person, caused Nichols's death. See Ark. Code Ann. § 5-10-103(a) (Repl. 1997). To prove the charge of manslaughter, the State had to show either that Wilson caused Nichols's death under circumstances that would be murder except that he caused his death under the influence of an extreme emotional disturbance for which there was a reasonable excuse or that Wilson recklessly caused Nichols's death. See Ark. Code Ann. § 5-10-104(a) (Repl. 1997). Both charges have the same causation element, which Wilson challenged in his directed-verdict motion. Accordingly, we hold that Wilson adequately preserved his motion for a directed-verdict on the manslaughter charge.

A motion for directed verdict is a challenge to the sufficiency of the evidence. Von Holt v. State, 85 Ark. App. 308, 151 S.W.3d 1 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial, viewing the evidence in the light most favorable to the State. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. Only evidence supporting the verdict will be considered. Id. Circumstantial evidence provides the basis to support a conviction if it is consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Id. Such a determination is a question of fact for the fact-finder to determine. Id. The longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial, and whether it does is a question for the jury. Id.

The trial court erred in denying Wilson's motion for a directed verdict. Every witness at the scene testified that they never saw Wilson get out of his automobile. The only evidence the State presented to show that Wilson exited his vehicle was Wilson's own statement. However, Wilson never stated that he shot Nichols. Stabbs testified that Wilson said that his gun went off accidentally when he tripped on the sidewalk, but the State presented no proof showing that Nichols was shot by any gun connected with Wilson. In addition, the State did not offer proof of any motive for Wilson to shoot Nichols; instead, the evidence showed that Wilson and Nichols were best friends. We need not consider that Wilson admitted to possessing a .38-caliber weapon; Nichols was shot with a .22-caliberweapon. See Jenkins v. State, 348 Ark. 686, 75 S.W.3d 180 (2002) (declining to consider evidence that the appellant admitted having a .38-caliber six-shooter when the victim was shot with a nine-millimeter semiautomatic handgun).

Simply put, the evidence was insufficient to show that Wilson caused the death of Nichols without some proof that Wilson shot Nichols. The jury was left to speculate how Wilson could have shot Nichols, let alone what his motive and mental state were insofar as the shooting was concerned. We hold, therefore, that the evidence was insufficient to show that Wilson committed manslaughter. Hence, his conviction must be reversed.

Reversed and dismissed.

Robbins and Roaf, JJ., agree.

1 Given that Wilson's counsel said that he was renewing the directed-verdict motion, we are unable to determine whether Wilson made a motion off the record or whether he simply misspoke and made one motion. Assuming that he did make an off-the-record motion, we are mindful that the appellant has the duty of making sure that all relevant motions are made on the record. See Robinson v. State, 353 Ark. 372, 108 S.W.3d 622 (2003). We are proceeding as if the "renewed" motion was the only directed-verdict motion made in the case. We further note that simply stating that one is renewing a motion for directed verdict is insufficient to effectively preserve a motion that is not on the record. See id.