Strain v. State
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Cite as 2009 Ark. App. 99 (unpublished)
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CACR08-616
RICKY STRAIN & WALTER J. SIMS
APPELLANTS
Opinion Delivered FEBRUARY
18, 2009
V.
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT,
[NO. CR-2005-937-2-5]
STATE OF ARKANSAS
HONORABLE JODI RAINES DENNIS,
JUDGE
APPELLEE
AFFIRMED
RITA W. GRUBER, Judge
Appellants Ricky Strain and Walter Sims were convicted by a jury of first-degree
murder and sentenced to imprisonment of twenty-five years and fifty years, respectively, for
the shooting death of Wade Miller. Strain raises two points for reversal, and Sims raises one.
We find no error and affirm.
In the early morning hours of September 6, 2005, Wade Miller was shot and killed near
the 12th Street bridge in Pine Bluff. Testimony surrounding the event was provided by two
witnesses: Jimmy Massey and Tommy Forrest, Jr. Massey testified that, at about 4:00 a.m.
on September 6, 2005, he met Strain and Sims at a liquor store on Ohio Street to buy cocaine
from Sims. Strain and Sims arrived in a car; Massey was on foot. According to Massey, after
Cite as 2009 Ark. App. 99 (unpublished)
he bought the drugs, he started walking and Strain and Sims left in the car. About five or ten
minutes later, as Massey approached 12th Street, he saw the same car that Sims and Strain had
been in at the liquor store parked by the curb, and he saw Sims in a fight with someone. He
testified that he saw the person on the ground get up and try to run away. He then saw Sims
fire a weapon and he heard a shot. Massey said that he saw Sims the next day at a
convenience store and that Sims “kind of made a threat towards me” and told Massey not to
tell anyone.
During cross-examination by Sims’s attorney, Massey was questioned about a
statement he gave to the police before trial. In that statement, Massey said that he saw both
Strain and Sims kicking, stomping, and punching the victim. Explaining this statement at
trial, Massey testified that he “saw the same two people that [he] had met just prior to this
kicking the crap out of someone and then I saw them shoot.” He indicated that he was
probably a little more clear on what happened when he gave the statement, four months after
the incident, than he was at trial, two years after the incident.
Forrest testified that he had known Sims all of his life because he grew up next door
to him and still lived there and that he knew Strain because he was often at Sims’s house. At
about 4:00 a.m. on September 6, 2005, Forrest and the victim, Wade Miller, were walking
down 12th Street to go to the bait shop, where Forrest was meeting with a man who owed him
money, when a car pulled up. Miller walked over to the car to talk, and Forrest continued
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Cite as 2009 Ark. App. 99 (unpublished)
walking down 12th Street toward the bait shop. When Forrest got to the end of the street, he
turned around and saw Sims and Strain “beating up” Miller. Miller took off running and then
Forrest heard gunshots. He testified that he did not see who was shooting because he ran
across the street and hid in the ditch. He then saw the car that Sims and Strain were in leave
the area.
Appellants were charged with capital murder in connection with the shooting death of
Wade Miller. A jury convicted appellants of first-degree murder, a lesser included offense
of capital murder. Both appellants appeal as error the admission of Massey’s testimony
regarding a drug transaction that took place between him and appellants before the murder.
Strain also appeals the sufficiency of the evidence to support his conviction.
Sufficiency of the Evidence
For his first point on appeal, Strain contends that there was insufficient evidence to
support his conviction for murder because there was no evidence that he participated in the
murder of anyone. He claims that the only evidence presented relating to him was evidence
that he “might have been” sitting in a car seen by two witnesses when the shooting took place.
He argues further that no one testified that he had a weapon or that he acted with the purpose
of killing Mr. Miller because there was no evidence that he acted at all.
We do not reach the merits of this issue because Strain’s insufficiency argument was
not preserved under Rule 33.1 of the Arkansas Rules of Criminal Procedure. In a jury trial,
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Cite as 2009 Ark. App. 99 (unpublished)
a defendant challenges the sufficiency of the evidence by making a motion for directed verdict
at the close of the prosecution’s evidence and again at the close of all of the evidence, which
Strain did. Ark. R. Crim. P. 33.1(a). Rule 33.1(a) also requires the motion for directed
verdict to “state the specific grounds therefor,” which Strain did not do. The rule further
provides that
[t]he 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. A motion for directed verdict or for
dismissal based on insufficiency of the evidence must specify the respect in
which the evidence is deficient. A motion merely stating that the evidence is
insufficient does not preserve for appeal issues relating to a specific deficiency
such as insufficient proof on the elements of the offense. A renewal at the close
of all of the evidence of a previous motion for directed verdict or for dismissal
preserves the issue of insufficient evidence for appeal.
Ark. R. Crim P. 33.1(c).
The supreme court has repeatedly stated that the motion must specifically advise the
circuit court how the evidence was deficient. Smith v. State, 367 Ark. 274, 283, 239 S.W.3d
494, 501 (2006); Pinell v. State, 364 Ark. 353, 219 S.W.3d 168 (2005). The reason
underlying this requirement is that it allows the circuit court the option of either granting the
motion or, if justice requires, allowing the state to reopen its case to supply the missing proof.
Pinell, 364 Ark. at 357, 219 S.W.3d at 171. Moreover, this court may not decide an issue for
the first time on appeal. Id.
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Cite as 2009 Ark. App. 99 (unpublished)
Strain’s attorney made the following motion for directed verdict at the close of the
State’s case:
We too would ask for a motion to offer—we would raise a motion to dismiss
on the grounds of sufficiency of evidence. I do not believe that there is any
evidence that would—that could be used against these two defendants, in
particular, with the conflicting evidence that was presented by the State’s two
witnesses, Forrest and Massey. Thank you.
At the close of all of the evidence, Strain’s attorney renewed his motion “on the same grounds
as previously stated.”
This motion does not specifically state how the evidence was
insufficient or even mention what element of the crime was not proven. Therefore, Strain did
not preserve his sufficiency argument for this court’s review.
Exception to 404(b)
We now turn to the second point on appeal, which point was brought to this court by
both Sims and Strain. They contend that the circuit court erred in allowing the State to elicit
testimony from Massey that he purchased drugs from Sims shortly before the murder
occurred. They argue that the trial court’s admission of the testimony under the res gestae
exception to Rule 404(b) of the Arkansas Rules of Evidence was an abuse of discretion.
Arkansas Rule of Evidence 404(b) states that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
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Cite as 2009 Ark. App. 99 (unpublished)
accident.” Evidence offered under Rule 404(b) must be independently relevant, thus having
a tendency to make the existence of any fact that is of consequence to the determination of the
action more or less probable than it would be without the evidence. Cook v. State, 345 Ark.
264, 270, 45 S.W.3d 820, 824 (2001). The list of exceptions to inadmissibility in Rule 404(b)
is not an exclusive list; rather, it is representative of the types of circumstances under which
evidence of other crimes, wrongs, or acts would be relevant and admissible. Id. As with other
evidentiary determinations, the balancing of the probative value against the prejudicial effect
is a matter left to the circuit court’s sound discretion, and we will not reverse the circuit court
absent a showing of a manifest abuse of discretion. Morris v. State, 367 Ark. 406, 412, 240
S.W.3d 593, 598 (2006).
Particularly relevant to this case, evidence of other crimes is admissible under the res
gestae exception to 404(b) to establish the facts and circumstances surrounding the alleged
commission of the offense. Gaines v. State, 340 Ark. 99, 110, 8 S.W.3d 547, 554 (2000)
(holding evidence of drug use on night of crime was admissible as res gestae, an exception
to Rule 404(b)); see also Thessing v. State, 365 Ark. 384, 230 S.W.3d 526 (2006) (holding
defendant’s post-murder drug use admissible under Rule 404(b) as evidence of res gestae).
Under the res gestae exception, the State is entitled to introduce evidence showing all
circumstances that explain the charged act, show a motive for acting, or illustrate the
accused’s state of mind if other criminal offenses are brought to light. Gaines, 340 Ark. at
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Cite as 2009 Ark. App. 99 (unpublished)
110, 8 S.W.3d at 545. Specifically, all of the circumstances connected with a particular crime
may be presented to the jury in order to put the jury in possession of the entire transaction. Id.
Where separate incidents comprise one continuing criminal episode or an overall criminal
transaction, or are intermingled with the crime actually charged, the evidence is admissible.
Id.
In this case, the drug transaction and the murder occurred within five to fifteen minutes
of each other only blocks apart. The purchaser of the drugs was an eye witness to the crime.
There was testimony at trial that the victim, Miller, was a drug user; Massey’s testimony that
he had just purchased drugs minutes before the murder from appellants was relevant to a
possible motive. Further, the testimony located the witness and appellants in the area at the
time of the crime and was relevant to Massey’s identification of appellants as the perpetrators
of the crime. The circumstances of the drug transaction put the jury “in possession of the
entire transaction.” See Gaines, 340 Ark. at 110, 8 S.W.3d at 545. We hold that the
admission of this evidence by the circuit court was not a manifest abuse of its discretion.
Affirmed.
P ITTMAN and B AKER, JJ., agree.
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