Robert Ray Hyatt v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

ROBERT RAY HYATT

APPELLANT

V.

STATE OF ARKANSAS APPELLEE

CACR 05-576

February 8, 2006

APPEAL FROM THE SEBASTIAN

COUNTY CIRCUIT COURT

[CR-2004-681]

HONORABLE NORMAN

WILKINSON, CIRCUIT JUDGE

AFFIRMED

David M. Glover, Judge

Robert Ray Hyatt was convicted by a Sebastian County jury of two counts of first-degree murder for the deaths of Bridgett Sing and her unborn daughter, Allie Sing, and one count of first-degree battery for injuries sustained by Johnny Gibbs. Hyatt was fleeing from the police when the stolen Honda Prelude he was driving ran a red light and hit Sing's Honda Accord, in which Gibbs was a passenger. Hyatt was sentenced to a total of fifty years in the Arkansas Department of Correction. Hyatt argues on appeal that the trial court erred in denying his directed-verdict motion with regard to the first-degree murder charges. We affirm.

When the sufficiency of the evidence is challenged, the appellate court considers only that evidence which supports the guilty verdict, and the test is whether there is substantial evidence to support the verdict. Blockman v. State, 69 Ark. App. 192, 11 S.W.3d 562 (2000). Substantial evidence is evidence of such certainty and precision as to compel a conclusion one way or another. Id.

A person commits first-degree murder if, acting alone or with one or more persons, he commits or attempts to commit a felony, and in the course of and in the furtherance of the felony or in immediate flight therefrom, he or an accomplice causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-10-102(a)(1) (Repl. 1997) (emphasis added). The State charged in the information alternatively that the underlying felonies committed by Hyatt were theft by receiving or fleeing.

A person commits theft by receiving if he receives, retains, or disposes of stolen property of another person, knowing that it was stolen or having good reason to believe it was stolen. Ark. Code Ann. § 5-36-106(a) (Supp. 2005). In order for theft by receiving to constitute a felony, the value of the property must be greater than $500; otherwise, it is a misdemeanor. See Ark. Code Ann. § 5-36-106 (e). Hyatt argues that the murder convictions must be overturned because the State failed to prove that the value of the stolen car exceeded $500.

We need not address appellant's argument. The State alleged, in the alternative, two underlying felonies, theft by receiving or fleeing, and the jury was instructed accordingly. The jury returned a general verdict of guilty on both of the first-degree murder charges, not specifying upon which ground the jury found Hyatt guilty. Hyatt makes no argument on appeal that there was insufficient evidence to support felony fleeing under Arkansas Code Annotated section 5-54-125(d) (Repl. 1997). Therefore, the first-degree murder convictions are supported by the unchallenged felony fleeing, and it is immaterial whether or not the State proved that the stolen car had a value of $500,because felony first-degree murder requires proof of only one felony. See Ark. Code Ann. § 5-10-102(a)(1).

Even if we were to address appellant's argument, Hyatt did not make the argument to the trial court that he now makes on appeal. At trial, Hyatt's counsel argued in his directed-verdict motion that Hyatt actually had stolen the vehicle and therefore could not be guilty of theft by receiving. Hyatt made no argument to the trial court regarding the State's failure to prove the value of the vehicle, and he cannot raise this argument for the first time on appeal.

Affirmed.

Pittman, C.J., and Roaf, J., agree.