Cite as

Digitally signed by Elizabeth Perry ARKANSAS COURT OF APPEALS Date: 2022.08.03 13:30:38 DIVISION II -05'00' Adobe Acrobat version: No. CR-19-224 2022.001.20169 Opinion Delivered: October 2, 2019 JAMES W. WEBB APPELLANT APPEAL FROM THE ASHLEY V. COUNTY CIRCUIT COURT [NO. 02CR-18-116] STATE OF ARKANSAS APPELLEE HONORABLE ROBERT BYNUM GIBSON, JR., JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

James Webb was convicted by an Ashley County jury of one count of second-degree

unlawful discharge of a firearm from a vehicle and one count of tampering with physical

evidence. He appeals his convictions, alleging that the trial court erred in failing to instruct

the jury on negligent homicide and asserting that there was insufficient evidence to support

his evidence-tampering conviction. We affirm.

Webb was charged with first-degree unlawful discharge of a firearm from a vehicle

and evidence tampering relating to the death of Dennis Smith. Dennis died on July 8, 2018,

from a gunshot wound. Webb admits that his weapon—a pistol—caused Dennis’s death,

and he also admits that he threw the pistol into the Ouachita River after the shooting. With

this background information, we will now consider the evidence presented to the jury. On the night of Dennis’ death, Webb and Leon “Shane” Thomas were driving in

Webb’s truck when they saw Mark 1 and Dennis Smith standing at the end of the road.

Shane asked Webb to stop so he could talk to Mark. Shane walked over to the Smith

brothers and started talking with them. Webb remained in the truck. What happened next

is in dispute. Both Mark and Shane testified that Webb pointed his pistol at the Smith

brothers and fired a shot that killed Dennis. Webb testified that Shane asked him about the

pistol and was holding the pistol. He further testified that in the process of retrieving the

pistol from Shane the gun discharged, and unfortunately, the bullet accidentally struck and

killed Dennis. Webb then left the scene and threw the gun in the river.

After hearing this evidence, the jury was instructed on the offenses of evidence

tampering and first-degree unlawful discharge of a firearm from a vehicle, as well as the

lesser-included offense of unlawful discharge of a firearm in the second degree. Webb

requested an instruction on negligent homicide, claiming that it is a lesser-included offense

of the unlawful-discharge-of-a-firearm offense, but the trial court disagreed and refused to

submit the instruction to the jury. Webb also moved for a directed verdict at trial, arguing

in part that the State had failed to prove the concealment of the firearm with the purpose

of impairing its availability in the official proceeding or investigation of a felony. The trial

court denied his directed-verdict motions, and the jury returned a verdict convicting him

of the lesser-included offense of second-degree unlawful discharge of a firearm and

tampering of physical evidence. He now appeals.

1 Mark Smith is the victim’s brother.

2 Although Webb addresses the sufficiency issue last, we must address it first because

of double-jeopardy concerns. Gillean v. State,

,

. This

court treats a motion for directed verdict as a challenge to the sufficiency of the

evidence. See Tubbs v. State,

,

(2007). In reviewing a challenge

to the sufficiency of the evidence, we determine whether the verdict is supported by

substantial evidence, direct or circumstantial.

Substantial evidence is evidence forceful

enough to compel a conclusion one way or the other beyond suspicion or

conjecture.

This court views the evidence in the light most favorable to the verdict, and

only evidence supporting the verdict will be considered.

We do not determine the

credibility of witnesses, as this is an issue for the jury and not the court. Morgan v. State,

,

. Here, the jury, as the trier of fact, was free to believe all

or part of any witness’s testimony and resolve questions of conflicting testimony and

inconsistent evidence.

Webb argues on appeal that the trial court erred in denying his motion for directed

verdict on the tampering-with-physical-evidence charge. To commit the offense of

tampering with physical evidence, Webb had to alter, destroy, suppress, remove, or conceal

any record, document, or thing with the purpose of impairing its verity, legibility, or

availability in any official proceeding or investigation.

(Repl.

2016). Webb admits that he was holding the gun when it discharged and killed Dennis and

further admits that he threw the gun into the river. He claims he did so because he was

remorseful and did not want a weapon that had been used to killed someone. He argues

3 that the State provided no evidence that he disposed of the weapon to impair or impede the

investigation of the shooting and Dennis’s resulting death.

We cannot reach the merits of Webb’s argument because his motion for directed

verdict at trial was too generic. In order to preserve his sufficiency argument on appeal,

Webb was required to make a specific motion for directed verdict at the close of the State’s

evidence and at the close of all the evidence. E.g., Maxwell v. State,

,

(2008). Rule 33.1(c) of the Arkansas Rules of Criminal Procedure states

in relevant part the degree of specificity required:

A motion for directed verdict . . . 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.

Ark. R. Crim. P. 33.1(c) (2018). “The rationale behind this rule is that ‘when specific

grounds are stated and the absent proof is pinpointed, the circuit court can either grant the

motion, or, if justice requires, allow the State to reopen its case and supply the missing

proof.’” Maxwell,

,

(quoting Pinell v. State,

,

(2005)).

At trial, Webb made the following motion for directed verdict:

I am also wanting to make a motion on the other charge of evidence tampering. The State has to prove that my client concealed the firearm with the purpose to impair its availability in the official proceeding or investigation of a felony. . . . The State already had all the evidence they needed to prosecute this case and . . . But, I mean, the State has not made a prima facie case of the evidence tampering because my client . . . there is no evidence that my client did this.

Webb’s motion failed to adequately specify any deficiencies in the State’s proof and

is therefore inadequate to preserve for appellate review the specific challenge to the

4 sufficiency of the evidence he now raises on appeal. E.g., Bienemy v. State,

,

236–37,

(2008). 2

Webb also asserts that the trial court erred in failing to instruct the jury on negligent

homicide. We utilize an abuse-of-discretion standard when reviewing a trial court’s

decision regarding the submission or rejection of jury instructions. Thomas v. State,

,

.

Webb argues that the trial court is required to give a lesser-included-offense

instruction if there is even the slightest evidence to support it, and because there was

evidence presented at trial to support a conviction for negligent homicide, the trial court

committed reversible error.

Webb correctly asserts that the refusal to give an instruction on a lesser-included

offense is reversible error if the instruction is supported by even the slightest evidence. See

Starling v. State,

,

. However, a trial court does not abuse

its discretion in denying a proffered jury instruction on a charge that is not a lesser-

included offense. See Brown v. State,

,

(2001). Here,

the trial court found that negligent homicide is not a lesser-included offense of unlawful

discharge of a firearm from a vehicle. We find no merit in Webb’s claim that the trial court

abused its discretion in this finding.

2 Even if Webb’s motion had been specific enough to preserve the sufficiency challenge, we conclude there was sufficient evidence presented to support the conviction. Webb shot Dennis, drove away in his vehicle, and threw the gun in the river. While he claimed that the discharge was accidental and that the disposal was not to impede any investigation or prosecution, the jury was not required to believe his version of events.

5 Whether an offense is included in another offense is determined by application of

Arkansas Code Annotated § 5-1-110(b) (Repl. 2013), which provides,

(b) A defendant may be convicted of one (1) offense included in another offense with which he or she is charged. An offense is included in an offense charged if the offense:

(1) Is established by proof of the same or less than all of the elements required to establish the commission of the offense charged;

(2) Consists of an attempt to commit the offense charged or to commit an offense otherwise included within the offense charged; or

(3) Differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish the offense’s commission.

See also Gaines v. State,

,

(2003).

Webb’s proffered instruction does not meet any of the three alternative tests set out

in Arkansas Code Annotated section 5-1-110(b). See McCoy v. State,

,

(2002). We can summarily dispose of a claim under subsection (b)(2) because

negligent homicide is not an attempt offense. We now consider whether negligent homicide

is established by proof of the same elements or less than all the elements required to establish

the offense of unlawful discharge of a firearm from a vehicle pursuant to section 5-1-

110(b)(1), or whether negligent homicide differs from the unlawful discharge of a firearm

from a vehicle only in the respect that a less serious injury or risk of injury to the same

person, property, or public interest or a lesser kind of culpable mental state suffices to

establish its commission. We conclude that it does not.

Webb was initially charged with first-degree unlawful discharge of a firearm from a

vehicle. A person commits this offense if the person knowingly discharges a firearm from a

6 vehicle and thereby causes death or serious physical injury to another person.

(Repl. 2016). Thus, the culpable mental state for first-degree unlawful

discharge of a firearm from a vehicle is directed at the act of discharging the firearm, not at

the death or injury to another person.

We now compare this to negligent homicide. A person commits negligent homicide

if the person negligently causes the death of another person.

-

105(b)(1). Thus, the culpable mental state for negligent homicide is directed at the act of

causing the death of another person. Hence, negligent homicide cannot be established by

proof of the same elements or less than all the elements required to establish unlawful

discharge of a firearm from a vehicle, nor can it be said to differ only in that a less serious

injury or risk of injury will establish its commission.

Applying the analysis found in Arkansas Code Annotated section 5-1-110(b), we

hold that negligent homicide is not a lesser-included offense of the offense of unlawful

discharge of a firearm from a vehicle. Accordingly, the trial court did not err in refusing to

instruct the jury on negligent homicide. See

Affirmed.

ABRAMSON and GLADWIN, JJ., agree.

Potts Law Office, by: Gary W. Potts, for appellant.

Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for appellee.

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