Jessie Gamble v. State of Arkansas

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ar04-397

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION II

CACR04-397

JANUARY 26, 2005

JESSIE GAMBLE AN APPEAL FROM THE PULASKI

APPELLANT COUNTY CIRCUIT COURT

v. [CR2003-3266]

STATE OF ARKANSAS HONORABLE CHRISTOPHER

CHARLES PIAZZA, JUDGE

APPELLEE

AFFIRMED

Olly Neal, Judge

Following a June 28, 2000 altercation, appellant Jessie Gamble was charged with possession of a firearm by certain persons and aggravated assault. A jury found appellant guilty of possession of a firearm by certain persons and assault in the third degree. He was sentenced to thirty years' imprisonment for possession of a firearm by certain persons and sentenced to thirty days and a fine for assault in the third degree. On appeal, appellant only challenges the sufficiency of the evidence to support his conviction for possession of a firearm by certain persons. We affirm.

At appellant's trial, Shalonda Flowers testified that she lived at 4117 Southern Street. She said that at around 3 a.m. on June 28, 2003, she was sitting outside her house, in her car smoking a cigarette, when she noticed someone later identified as appellant, knocking on her neighbor's door. Ms. Flowers got out of her car when she saw Wayne Ealy approach. She testified that, while she and Mr. Ealy were talking, appellant approached her and asked if she had seen her neighbors. Ms. Flowers said, "I told him, no, I hadn't seen them, I didn't care to see them." She also said that she was cursing. She stated that appellant then called her a "stupid B." Ms. Flowers said that appellant then became agitated and pulled out a gun. She described the gun as a black pistol. She said that appellant aimed the gun toward her house but never said he was going to shoot or kill her. Ms. Flowers said that appellant eventually left with Mr. Ealy.

Deputy Alan Hunt of the Pulaski County Sheriff's Office testified that Ms. Flowers told him that appellant had a gun and had pointed the gun straight up in the air. He said that when he met with appellant on July 21, 2003, appellant said that he and Ms. Flowers had an argument. He said that appellant denied having a gun.

Deputy Brian Sternberg of the Pulaski County Sheriff's office testified that on June 28 he investigated a disturbance at 4117 Southern Street. He said that, when he talked to Ms. Flowers, she described the gun as a black automatic pistol. Deputy Sternberg testified that Ms. Flowers never said that appellant pointed the gun at her or threatened to harm her.

Wayne Ealy testified that on June 28, while out walking, he came upon appellant and Ms. Flowers. He said they were arguing and cursing. He said that during their argument appellant had a cell phone and not a gun in his hand. Mr. Ealy testified that he told Deputy Hunt that appellant did not have a gun.

Deputy Hunt was recalled to rebut Mr. Ealy's testimony. At that time, Deputy Hunt testified that, when he talked to Mr. Ealy on July 9, Mr. Ealy told him that appellant pulled a gun on Ms. Flowers.

At the conclusion of the State's case and again at the close of all the evidence, appellant made a motion for directed verdict challenging the sufficiency of the evidence to support the possession of a firearm by certain persons charge. He argued that the State failed to introduce the purported gun into evidence and without the gun the jury could not determine if the purported gun met the statutory definition of a firearm. He also argued that the only person that could offer testimony about the gun, Ms. Flowers, lacked the proper knowledge as to whether the gun met the statutory definition of a firearm. Appellant also made a motion for directed verdict challenging the sufficiency of the evidence to support the assault charge. The trial court denied both motions.

On appeal, appellant only argues that the trial court erred when it denied his motion for directed verdict challenging the State's proof that he had a firearm during the altercation. A motion for directed verdict is a challenge to the sufficiency of the evidence. Curtis v. State, 76 Ark. App. 458, 68 S.W.3d 305 (2002). When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in a light most favorable to the State and only the evidence that supports the verdict is considered. See Hunt v. State, 354 Ark. 682, 128 S.W.3d 820 (2003). The conviction is affirmed if substantial evidence exists to support it. See id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id.

A person commits the offense of possession of a firearm by certain persons if he possesses or owns a firearm and has been convicted of a felony, adjudicated mentally ill, or committed involuntarily to any mental institution. See Ark. Code Ann. § 5-73-103 (Supp. 2003). A firearm is defined as "any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use." See Ark. Code Ann. § 5-1-102(6) (Supp. 2003).

Appellant specifically argues that the State failed to prove that he had an item capable of expelling a projectile by means of an explosion. He points out that the purported gun was not introduced into evidence, there was no testimony supporting the definition of firearm, and the only witness that had seen the gun, Ms. Flowers, lacked the proper knowledge as to whether the purported gun was capable of being fired. The State counters by arguing that the fact that Ms. Flowers testified that she observed a handgun was sufficient to support appellant's conviction.

Appellant omits the fact that at one point Mr. Ealy told the investigating officers that appellant had a gun. During his testimony, Mr. Ealy denied having said this. However, the resolution of conflicts in testimony and assessment of witness credibility is an issue for the trier of fact. Loy v. State, Ark. App. , S.W.3d (Oct. 13, 2004). Furthermore, Ms. Flowers consistently stated that appellant possessed a black pistol. See also United States v. Anderson, 78 F.3d 420 (8th Cir. 1996) (holding that eyewitness testimony can be sufficient evidence for felon in possession). Therefore, there was sufficient evidence that appellant possessed a firearm and we affirm.

Affirmed.

Gladwin and Robbins, JJ., agree.

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