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ARKANSAS COURT OF APPEALS DIVISION II No. CR-18-1061

JOSHUA DULLE Opinion Delivered: September 18, 2019

APPELLANT APPEAL FROM THE BOONE COUNTY CIRCUIT COURT V. [NO. 05CR-16-188]

HONORABLE GORDON WEBB, STATE OF ARKANSAS JUDGE APPELLEE AFFIRMED

RAYMOND R. ABRAMSON, Judge

A Boone County Circuit Court jury convicted appellant Joshua Dulle of second-

degree murder and sentenced him to sixteen years in the Arkansas Department of

Correction. On appeal, Dulle challenges the sufficiency of the evidence supporting his

conviction. For the following reasons, we affirm.

On February 20, 2016, six-month-old Miles Dunaway was rushed to the North

Arkansas Regional Medical Center emergency room in critical condition caused by a severe

neurological injury. Miles was flown to Arkansas Children’s Hospital in Little Rock where

he died from his injuries the following day. At 4:50 a.m. on February 20, Miles’s mother,

Alexis Dunaway, had dropped Miles off with his babysitters, Joshua Dulle and his

girlfriend, Kimberly McCoy. Dulle babysat Miles because he believed he was the child’s father. McCoy and Dulle had their two biological children living in their home when they

were watching Miles.

Dunaway recalled nothing was unusual with Miles when she dropped him off with

McCoy and Dulle. McCoy gave him a bottle and changed his diaper and left for work

about 8:30 that morning. McCoy told Dulle to bathe Miles because he was sweaty. Dulle

was the lone adult with Miles for approximately forty-five minutes before finding Miles

unresponsive and not breathing. He later told officers three different versions of what

unfolded.

Dulle stated that Miles was “active in the water” during the shower, and afterward,

he left Miles alone in the room between two and five minutes. When Dulle returned, Miles

was either not moving or was moving only his legs according to contradictory statements

made by Dulle. However, all of the versions of his story included that Miles’s eyes were

rolled back in his head. Medical records indicated that Miles had been found unresponsive

and not breathing on a previous occasion.1 At that time, he was diagnosed with

laryngomalacia, a condition that can cause difficulty breathing; his mother reported

continued breathing problems after that.

At one point, Dulle told officers that he shook Miles a number of times and may

have “tapped” him on the face. He also pulled his bib off his neck and claimed to have

tripped over a baby gate and fallen to the floor while trying to seek help. When officers

1 This occurred when Miles was approximately two months old and in the care of his grandparents.

2 arrived, Miles had no pupil response and required placement of an endotracheal tube for

breathing. Multiple responders noted a red line across his neck and bruising on the left

side of his jaw and on the other side of his face. Miles was transported to a local hospital

and then flown to Arkansas Children’s Hospital.

From his arrival at the local hospital to the time his death was declared, Miles

remained a three on the Glasgow Coma Scale, the same as a deceased person. This is

because he had no eye-opening response, no motor function, and no verbal response.

Miles’s numerous brain injuries included a subarachnoid hemorrhage, an intraventricular

hemorrhage, and swelling of the brain, which caused the sutures of his skull to separate.

He had diffused retinal hemorrhages in both eyes, and one of the exams found a macular

fold in the left eye. The autopsy showed that the ligature mark across the neck was a “deep-

seated contusion” and that Miles had a bruise on the back of his neck.

Dulle was charged with capital murder and convicted of second-degree murder. At

trial, Dulle moved for a directed verdict on the charge of capital murder as well as the

lesser- included offenses of murder in the first degree, murder in the second degree,

manslaughter, and negligent homicide. The circuit court denied the motion as to each

offense. Dulle renewed his motion at the conclusion of all the evidence; it was again

denied. After being convicted of second-degree murder, Dulle again challenged the

sufficiency of the evidence in a posttrial motion to set aside the verdict. It was deemed

denied by the circuit court’s inaction. This timely appeal is now properly before our court.

3 Our standard of review for a sufficiency challenge is well settled. We treat a motion

for directed verdict as a challenge to the sufficiency of the evidence. Price v. State,

,

. In reviewing a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to the State and consider only

the evidence that supports the verdict.

377 S.W.3d at 330–31. We affirm a conviction

if substantial evidence exists to support it.

.

The test for determining the sufficiency of the evidence is whether the verdict is

supported by substantial evidence, direct or circumstantial. Snow v. State,

,

. 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.

Circumstantial evidence

may constitute substantial evidence to support a conviction only if it excludes every other

reasonable hypothesis other than the guilt of the accused, and the jury is charged with

making this determination.

The weight of the evidence and the credibility of the witnesses are matters for the

fact-finder, not for this court on appeal. Ridling v. State,

,

(2005). The jury may believe all or part of any witness’s testimony and is responsible for

resolving questions of conflicting testimony and inconsistent evidence. Satterfield v. State,

,

. This is true even of opinion testimony offered by

experts. E.g., Marcyniuk v. State,

,

. A person’s

intent or state of mind is rarely capable of proof by direct evidence and most often is

4 inferred from the circumstances of the crime. E.g., Steggall v. State,

,

(2000). A jury is not required to lay aside common sense and may infer

guilt from improbable explanations of incriminating conduct. See, e.g., Davis v. State,

,

(1996).

A person commits second-degree murder if “[t]he person knowingly causes the

death of another person under circumstances manifesting extreme indifference to the value

of human life[.]”

(a)(1) (Repl. 2013). Knowingly is defined as a

“person’s conduct or the attendant circumstances when he or she is aware that his or her

conduct is of that nature or that the attendant circumstances exist”; or “[a] result of the

person’s conduct when he or she is aware that it is practically certain that his or her

conduct will cause the result[.]”

(2)(A) & (B) (Repl. 2013). For

instance, a person acts knowingly with respect to the result when he strikes and shakes a

child to death. See Steggall, 340 Ark. at 190–94, 8 S.W.3d at 543–45 (holding that

defendant acted knowingly based on medical evidence of brain bleeding, bleeding in the

eyes, fractures, and older injuries of the child that could not be explained by accidental

trauma, but were explained by shaking and slamming the child).

Circumstances manifesting extreme indifference to the value of human life require

“deliberate conduct that culminates in the death of another person.” Price v. State,

,

, 465–66 (2008). This necessitates actions on the part of the

person that evidence a mental state, and the intent required is the “intent to engage in the

5 conduct that ultimately culminates in the death of a person, and not the intent to cause

the death of a person.”

,

.

With these standards in mind, we turn to the case before us to determine if the

evidence at trial was sufficient to establish Dulle’s second-degree-murder conviction. Miles

died as a result of abusive head trauma that was the result of rapid force and violent

shaking. There was a significant amount of bleeding in different areas of his brain. The

doctors who testified for the State also ruled out a host of improbable alternate theories

proposed by Dulle that all share a common denominator: they all fail to fully explain every

medical finding. Miles’s death was not due to his preexisting condition of a floppy airway

or related to any previous hospitalization.

Ultimately, the determination of the credibility and weight given to the medical

testimony is a function of the jury, and speculation or conjecture was not necessary to find

that Miles died of abusive head trauma. On medical evidence alone, Dr. Karen Farst, an

expert witness who specializes in child-abuse pediatrics at Arkansas Children’s Hospital,

testified that she was able to narrow down the time of injury to a six-hour period. However,

once the injury was sustained, Dr. Farst noted that, even had Miles not become

immediately comatose or unresponsive, he would not have been described as “appearing

well[.]” Nor would Miles have been able to take a bottle without looking unwell. Dr. Farst

testified, based on over two decades of experience, that this type of traumatic injury would

be immediately symptomatic.

6 The proof at trial established that Dulle acted knowingly because he was aware that

his conduct, which caused Miles’s devastating injuries, was practically certain to cause

Miles’s death. Although intent is rarely proved by direct evidence, it can be inferred from

the circumstances of the crime. E.g., Steggall,

,

. The head

injuries were described as “neurological devastation” with a “very abnormal”

intraventricular hemorrhage, brain swelling that was a “very severe finding[,]” and skull

sutures that were “much, much too wide” because they were being pushed apart by the

brain swelling. In addition, the bilateral retinal hemorrhage and macular fold were

evidence of “very severe trauma.” Simply put, Miles’s death was due to violent shaking, and

the jury could reasonably infer that Dulle was the person responsible.

Given our standard of review, we hold that substantial evidence supports the jury’s

verdict in the instant case. Accordingly, we affirm.

Affirmed.

GLADWIN and WHITEAKER, JJ., agree.

Teri L. Chambers, Arkansas Public Defender Commission, for appellant.

Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for appellee.

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