Mettro Tardack Johnson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR04-612

February 2, 2005

METTRO TARDACK JOHNSON AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR03-3526]

V. HON. JOHN W. LANGSTON, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Mettro Johnson appeals his conviction for first-degree murder, arguing there was insufficient evidence to support the conviction because the evidence failed to exclude the reasonable alternative hypothesis that he had no intent to kill and he believed his action was justified by the circumstances. We hold that appellant's argument is procedurally barred because he failed to challenge any element of the offense for which he was convicted.

The State charged appellant with first-degree murder for the death of DeCarlos Harper (Harper), the brother of appellant's live-in girlfriend, Elaina Harper (Elaina). It is undisputed that appellant shot Harper on July 11, 2003, a short time after the two men had fought at appellant's home. It is also undisputed that Elaina was in an automobile accident earlier that day that caused damage to appellant's truck, and that the fight began because Harper did not think appellant was sympathetic to Elaina.

However, there was conflicting testimony concerning the events immediately before the shooting. Appellant's version, partially corroborated by Elaina, was that when the fight ended, Harper told appellant that "one of us ain't going to make it back." Harper then returned to his mother's home (two houses away), retrieved a knife, returned to appellant's yard and turned toward appellant, who was by this time on the porch with a shotgun. Appellant testified that he seized the gun from inside the home because Elaina had previously warned him about Harper's reputation for violence, and because he knew Harper had recently been in a fight during which he broke another persons neck. When Harper turned from the street and reached the edge of appellant's yard, he opened the knife and appellant shot him. Because Harper was still moving and had the knife in his hands, appellant then struck him twice in the head and face with the butt of his gun. According to appellant, he dropped the gun in the yard and left in his truck.

The State's version of events was established by eyewitnesses who consisted largely of Harper's family members. In this version, Harper did not leave after the fight ended, did not threaten appellant, and never possessed a weapon. Instead, after the fight ended, appellant immediately went inside his home, retrieved his gun, stepped out onto the porch, called Harper's name, and shot Harper as he turned around. Harper fell and did not attempt to get up, but appellant then struck him with the gun. According to witnesses other than appellant, he took the gun with him when he left in his truck.

Harper suffered massive damage to his abdomen, genitalia, and thighs. He died a few hours later from blood loss due to the gunshot wound. The butt of the gun, which apparently broke when appellant struck Harper, was recovered at the scene. However, the remainder of the gun was never found and no knife or any other weapon was recovered at the scene.

Regardless which version of events took place, it is undisputed that appellant left in his truck and was arrested a short distance from the scene. He was cooperative with the arresting officer; by his own admission appellant told the officer he was "in trouble" and that the altercation began because "my girlfriend wrecked my truck and he [Harper] came down running his mouth."

At the close of the State's evidence, appellant moved for a directed verdict, arguing that there was "insufficient evidence for the court to submit the matter for the jury on the specific issue of premeditation." He subsequently renewed his motion on the same ground. The trial court denied both motions. The jury convicted appellant of first-degree murder and sentenced him to serve twenty-five years in the Arkansas Department of Correction. This appeal followed.

We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Jordan v. State, 356 Ark. 248, 147 S.W.3d 691 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. The fact that evidence is circumstantial does not render it insubstantial. However, where circumstantial evidence is relied upon, it must exclude every other reasonable hypothesis but the guilt of the accused. Geer v. State, 75 Ark. App. 147, 55 S.W.3d 312 (2001). Two equally reasonable conclusions as to what occurred merely give rise to a suspicion of guilt. Gregory v. State, 341 Ark. 243, 15 S.W.3d 690 (2000).

Appellant's argument is that the evidence could have led the jury to an alternate conclusion equally as reasonable as the State's version, namely, that he did not shoot Harper with premeditation, but shot him believing his actions to be justified by the circumstances. These circumstances included Harper's alleged threat as he left after the fight, appellant's knowledge that Harper had a reputation for violence and had recently broken a man's neck, leaving him paralyzed, and the fact that Harper had an open knife and was entering appellant's yard.1

However, appellant's failure to challenge any of the elements of the offense of first-degree murder precludes our review of the issue. Here, appellant was charged pursuant to Arkansas Code Annotated § 5-10-102(a)(2)(Repl. 1997), which provides that a person commits first-degree murder if "[w]ith a purpose of causing the death of another person, he causes the death of another person." By asserting in his motion for a directed verdict that the State failed to show that he acted with premeditation, appellant purported to challenge the mens rea element of the offense.

However, premeditation is no longer an element of first-degree murder. Smith v. State, 310 Ark. 247, 837 S.W.2d 279 (1992)(stating that the mens rea for first-degree murder is not premeditation and deliberation and that the State is not required to prove that mental state). Appellant did not argue that the State failed to show that he acted with the purpose to cause Harper's death and moreover, he failed to challenge any other elements of the offense. Thus, the only challenged an element of an offense that the State was not required to prove. Accordingly, because appellant did not challenge any element of the crime of first-degree murder, he has not preserved his challenge to the sufficiency of the evidence. Jenkins v. State, 350 Ark. 219, 85 S.W.3d 878 (2002)(refusing to address on the merits the sufficiency of the evidence supporting conviction where the defendant failed to challenge any elements of the offense).

Finally, the jury was faced with conflicting testimony; it was within the jury's province to weigh the witnesses credibility and to resolve the conflicting testimony. Barrettv. State, 354 Ark. 187, 119 S.W.3d 485 (2003). The evidence, viewed in the light most favorable to the State, demonstrates that appellant went into his house after the argument, retrieved the gun, and shot Harper, without warning, while Harper, who was unarmed, stood in the street. Harper thereafter fell into the street and did not move. Appellant advanced on Harper, struck him two times in the head with the weapon, and attempted to recock his weapon. On these facts, a jury could have reasonably found, without resort to speculation and conjecture, that appellant acted with the purpose to cause Harper's death.

Affirmed.

Vaught and Crabtree, JJ., agree.

1 At appellant's request, the trial court provided instructions on self-defense, as well as the lesser charges of second-degree murder and manslaughter. Appellant does not challenge the wording of those instructions on appeal.